The third principle concerns the appreciation of
evidence in cases of sexual offences and of crimes
committed within the privacy of the home. Offences
of this nature are seldom committed in the presence
of witnesses. The sexual abuse of a child within the
household, in particular, is perpetrated in secrecy
and in stealth, and the persons ordinarily present are
the perpetrator, the child and, if at all, a member of
the household who is powerless to prevent it. To
insist, in such cases, upon the kind of corroboration
that might be available in a crime committed in the
open would be to insist upon a standard that the very
nature of the offence renders impossible of
attainment, and would be to grant to those who prey
upon children within the home an immunity founded
upon the secrecy in which they cloak their crime. {Para 31}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 429-430/2020
WARIS Vs THE STATE OF MADHYA PRADESH
Author: VIKRAM NATH, J.
Citation: 2026 INSC 1050.
Dated: SEPTEMBER 24, 2026
TABLE OF CONTENTS
PART I- INTRODUCTION ................................................ 3
PART II- THE PROSECUTION CASE ................................ 6
PART III - THE TRIAL AND THE FINDINGS OF THE
COURTS BELOW ............................................................ 8
PART IV - PROCEEDINGS BEFORE THIS COURT .......... 11
PART V - THE SUBMISSIONS OF THE PARTIES ............ 14
PART VI - THE POINTS FOR DETERMINATION ............. 16
PART VII - ANALYSIS ................................................... 18
SECTION A - THE CURATIVE FURTHER CROSSEXAMINATION
AND THE RIGHT TO A FAIR TRIAL ....... 18
SECTION B - THE PRINCIPLES OF APPRECIATION ....... 20
SECTION C- THE OBJECTIVE SUBSTRATUM: THE
MEDICAL EVIDENCE .................................................... 26
SECTION D - THE OCULAR ACCOUNT OF THE MOTHER
OF THE VICTIM ........................................................... 32
CRL.A. NOS.429-430 OF 2020 Page 2 of 157
SECTION E - THE ASSAULT UPON THE CREDIBILITY OF
THE MOTHER OF THE VICTIM ..................................... 40
E.1 The alleged material omissions .............................. 40
E.2 The alleged internal contradictions ........................ 50
E.3 The conduct of the mother of the victim: the
entrapped witness ........................................................ 56
E.4 The submission founded upon the call detail record64
E.5 The alleged contradiction with PW-4 and the theory
of false implication ...................................................... 68
SECTION F — THE VICTIM’S DYING DECLARATION ..... 73
SECTION G - THE CORROBORATIVE EVIDENCE ........... 80
SECTION H- THE SCIENTIFIC EVIDENCE ..................... 86
SECTION I- THE DEFENCE CASE ................................. 92
SECTION J- THE ALLEGED DEFECTS IN THE
INVESTIGATION ........................................................... 98
SECTION K - THE OFFENCES ESTABLISHED .............. 103
SECTION L- THE COMPLETE PICTURE ....................... 108
PART VIII- CONCLUSION ON CONVICTION ................. 112
PART IX - THE QUESTION OF SENTENCE .................. 115
SECTION M- THE SENTENCING PROCEEDINGS AND THE
MATERIAL NOW BEFORE THE COURT ....................... 115
SECTION N- THE LAW GOVERNING THE SENTENCE OF
DEATH ....................................................................... 120
SECTION O - THE AGGRAVATING CIRCUMSTANCES .. 127
SECTION P - THE MITIGATING CIRCUMSTANCES ...... 134
SECTION Q- THE WEIGHING OF THE CIRCUMSTANCES
.................................................................................. 140
SECTION R - THE COMPARABLE CASES, THE MIDDLE
PATH, AND THE ADEQUATE SENTENCE ..................... 148
PART X – THE CONCLUSION ...................................... 155
CRL.A. NOS.429-430 OF 2020 Page 3 of 157
PART I- INTRODUCTION
1. The present criminal appeals arise out of the final
judgment and order dated 18.11.2019 passed by the
High Court of Madhya Pradesh, Bench at Indore1 in
Criminal Reference No. 1 of 2019 and Criminal
Appeal No. 1854 of 2019, whereby the High Court
affirmed the conviction of the appellant and
confirmed the sentence of death imposed upon him
by the judgment dated 17.12.2018 passed by the
Second Additional Sessions Judge and Special Judge
under the Protection of Children from Sexual
Offences Act, 2012, Jaora, District Ratlam2 in Special
Case No. 3 of 2018.
2. The appellant stands convicted for the offences
punishable under Sections 376(2)(f), 376(2)(n),
376AB, 302 and 201 of the Indian Penal Code, 18603
and Sections 5 and 6 of the Protection of Children
from Sexual Offences Act, 20124. For the offences
under Section 376AB and Section 302 of the IPC, the
Trial Court sentenced the appellant to death, and the
High Court confirmed the said sentence while
answering the reference in the affirmative and
dismissing the appeal preferred by the appellant.
1 hereinafter referred to as the "High Court"
2 hereinafter referred to as the "Trial Court"
3 (hereinafter referred to as the "IPC")
4 (hereinafter referred to as the "POCSO Act")
CRL.A. NOS.429-430 OF 2020 Page 4 of 157
3. The charge against the appellant was that he
subjected his own step-daughter, a girl child of about
six years of age who is referred to throughout this
judgment only as "the victim", to repeated sexual
assault within the four walls of the home, and
thereafter throttled her to death. The solitary
eyewitness to the events was the mother of the victim,
who is the wife of the appellant, and who has been
examined as the first prosecution witness5. In
deference to the mandate of Section 33(7) of the
POCSO Act and the settled law forbidding disclosure
of the identity of a child victim of sexual assault,
neither the victim nor her mother is named in this
judgment, and the parties and witnesses connected
to the family are referred to only in a manner that
preserves that anonymity.
4. Although the appeals were laid before this Court
against a concurrent conviction, they came to acquire
an unusual dimension in the course of their hearing.
It emerged that the cross-examination of PW-1, who
is the foundation of the entire prosecution edifice, had
been conducted at the trial by a legal aid counsel
appointed on the very day on which her testimony
was recorded. This Court, by its order dated
08.05.2025, therefore directed a further crossexamination
of PW-1, which was carried out on
5 (hereinafter referred to as "PW-1")
CRL.A. NOS.429-430 OF 2020 Page 5 of 157
14.06.2025, and the record of that exercise now forms
part of the material before us. The appeals
consequently require this Court to determine, at the
threshold, whether the infirmity which attended the
recording of the evidence of PW-1 has been duly
remedied pursuant to the directions issued by this
Court. If the Court is satisfied that the appellant has
now had an effective opportunity to cross-examine
the said witness and that no residual prejudice
survives so as to vitiate the trial, the Court would
thereafter be required to consider the entire material
on record, including the additional evidence now
recorded, to assess whether the conviction and
sentence recorded against the appellant can be
sustained in law.
5. At the heart of these appeals lies a question that is at
once evidentiary and profoundly human, namely the
measure of credence that the law accords to the
testimony of a mother who deposes to the sexual
violation and killing of her own child within the home
in which she herself was confined, and the manner in
which a court must weigh the omissions, the
improvements, the delay and the seeming
inconsistencies that so often accompany the evidence
of such a witness. Having regard to the gravity of the
charge and the sentence, we have considered the
entire record with the care that a matter of this nature
demands.
CRL.A. NOS.429-430 OF 2020 Page 6 of 157
PART II- THE PROSECUTION CASE
6. The case set up by the prosecution may be narrated
as follows:
6.1. The mother of the victim was earlier married to
one Shakeel, from whom she had four children.
After his death, she returned to her parental
home at Jaora with the victim, who was then
about five years of age. On 04.08.2017, she
married the appellant and shifted with the
victim to his house at village Kushalgarh.
6.2. The prosecution case is that after an initial
period of cordiality, the appellant began illtreating
the victim and thereafter subjected her
to sexual abuse within the household. The
mother alleged that the appellant threatened her
when she objected, controlled her movements
and prevented disclosure of what was taking
place in the home.
6.3. The immediate events are alleged to have
commenced on the night of 21.04.2018, when
the appellant sexually assaulted the victim after
confining the mother in another room. The child
thereafter remained restless, vomited and her
condition progressively deteriorated. On
22.04.2018 also, according to the prosecution,
the appellant assaulted the child and refused to
CRL.A. NOS.429-430 OF 2020 Page 7 of 157
take her for medical treatment despite the
requests of the mother.
6.4. On 23.04.2018, the mother telephoned the
appellant in the morning as the condition of the
child worsened. The call detail record shows two
calls made to the appellant at 09:20:30 hours
and 09:21:24 hours. The appellant returned at
about noon. According to the mother, his first
enquiry was whether the child had disclosed
anything to her. When the mother again pressed
for medical treatment, the appellant refused.
Shortly thereafter, she heard the child scream
and saw the appellant throttling her with both
hands. The child died soon thereafter.
6.5. The appellant thereafter took the child to private
medical practitioners, who either did not
examine her or declared her dead. The body was
taken towards Kushalgarh, where the appellant
proposed immediate burial, but upon the
insistence of the mother it was taken to Jaora.
The body was then brought to the Civil Hospital,
Jaora. The post-mortem examination conducted
on 24.04.2018 opined that the cause of death
was asphyxia due to throttling and also recorded
a fresh tear at the fourchette with oozing of
blood, indicative of sexual assault. The
appellant was arrested on 25.04.2018, and after
CRL.A. NOS.429-430 OF 2020 Page 8 of 157
investigation a charge-sheet was filed for
offences under the IPC and the POCSO Act.
PART III - THE TRIAL AND THE FINDINGS OF THE
COURTS BELOW
7. On the basis of the material collected during the
investigation, the Trial Court framed charges against
the appellant on 02.07.2018 for the offences
punishable under Sections 376(2)(f), 376(2)(i),
376(2)(n), 376AB, 302 and 201 of the IPC and
Sections 5 and 6 of the POCSO Act. The appellant
denied his guilt, pleaded not guilty and claimed trial.
8. In support of its case the prosecution examined
twenty-four witnesses and exhibited a large number
of documents. The material witnesses may be
identified at the outset for convenience. PW-1 is the
mother of the victim and the solitary eyewitness to the
events within the household. PW-2 and PW-5 are
residents of the locality who spoke with respect to the
antecedent conduct of the appellant and the
condition of the victim shortly before her death. PW-
3 is the medical practitioner at Hasanpaliya who
examined the child and declared her dead. PW-4 is
the sister-in-law of the mother of the victim. PW-6 is
the autopsy surgeon who conducted the post-mortem
examination. PW-7 is the village health worker who
was summoned to see the child, and PW-8 is the
doctor who conducted the pre-medico-legal
CRL.A. NOS.429-430 OF 2020 Page 9 of 157
examination at the Civil Hospital, Jaora. PW-24 is the
Investigating Officer.
9. The appellant was thereafter examined under Section
313 of the Code of Criminal Procedure, 19736, and
the incriminating circumstances appearing in the
evidence were put to him. The appellant denied the
entirety of the prosecution case and set up a plea of
false implication. His defence, in substance, was that
he had been falsely roped in at the instance of PW-4,
that the mother of the victim had deposed against him
under pressure and instigation, that he had been
threatened by the police with implication in a case
relating to opium husk and had been made to sign
blank papers, and that he was in fact absent from the
village on the relevant dates, having gone to Khodana
near village Kalukheda. In support of the plea, the
appellant examined three witnesses in defence, being
DW-1, who is the appellant himself, DW-2 and DW-3,
the last of whom is the son of the appellant.
10. The Trial Court, upon an appreciation of the evidence,
held the mother of the victim to be a natural and
truthful witness whose account of the sexual assault
and the throttling of the child bore the stamp of truth.
The Trial Court found her testimony to be
corroborated by the medical evidence of the autopsy
surgeon, which established that the death was
6 hereinafter referred to as the “CrPC”
CRL.A. NOS.429-430 OF 2020 Page 10 of 157
homicidal and was occasioned by throttling, and
which disclosed an injury indicative of sexual assault,
as well as by the forensic evidence, the recoveries and
the conduct of the appellant. The Trial Court rejected
the plea of alibi and the plea of false implication,
convicted the appellant for the offences under
Sections 376(2)(f), 376(2)(n), 376AB, 302 and 201 of
the IPC and Sections 5 and 6 of the POCSO Act, and
by a separate order of the same date, namely
17.12.2018, sentenced him to death for the offences
under Section 376AB and Section 302 of the IPC,
together with the fines and the substantive sentences
set out in the judgment of the Trial Court. The
appellant was acquitted of the charge under Section
376(2)(i) of the IPC.
11. In view of the sentence of death, the Trial Court
transmitted a reference to the High Court under
Section 366 of the CrPC for confirmation, which was
registered as Criminal Reference No. 1 of 2019, and
the appellant preferred Criminal Appeal No. 1854 of
2019 assailing his conviction and sentence. The
reference and the appeal were heard together.
12. Before the High Court, a specific plea was pressed on
behalf of the appellant that he had been denied a
proper opportunity of defence, inasmuch as the legal
aid counsel appointed to represent him at the trial
was inexperienced and had cross-examined the
mother of the victim without adequate preparation.
CRL.A. NOS.429-430 OF 2020 Page 11 of 157
The High Court did not find merit in the said
objection. Upon a reappreciation of the evidence, the
High Court affirmed the finding that the mother of the
victim was a reliable witness, held that the
prosecution had established the guilt of the appellant
beyond reasonable doubt, and concluded that the
case fell within the category of the rarest of rare cases
warranting the extreme penalty. By its judgment
dated 18.11.2019 the High Court accordingly
answered the reference in the affirmative, confirmed
the sentence of death, and dismissed the appeal
preferred by the appellant.
PART IV - PROCEEDINGS BEFORE THIS COURT
13. When the present criminal appeals were being heard,
the grievance concerning the denial of effective legal
assistance at the trial came to be crystallised before
this Court, and on a scrutiny of the record it assumed
a significance that could not be ignored. It is
necessary to set out the sequence of events at the trial
that gave rise to this grievance.
14. The record of the Trial Court discloses that the
counsel initially engaged by the appellant appeared
on 21.06.2018 and declined to plead on his behalf.
On 02.07.2018 one Advocate Mr. Mohd. Ahmad Khan
entered appearance for the appellant and filed his
vakalatnama, and on the same day charges were
CRL.A. NOS.429-430 OF 2020 Page 12 of 157
framed. On 06.07.2018 the matter was fixed for the
recording of prosecution evidence, and two dates were
appointed, the first of which, being 16.07.2018, was
fixed for the examination of the mother of the victim
as the star prosecution witness. On 16.07.2018, the
appellant was produced from custody but the counsel
engaged by him was not present. The appellant
submitted that he was unable to bear the fees of his
counsel and prayed that he be provided the services
of a legal aid counsel. The Trial Court acceded to the
request and appointed a legal aid counsel to represent
the appellant. On that very day, the Trial Court
proceeded to record the entire examination-in-chief of
the mother of the victim and ensured that her crossexamination
was also completed by the newly
appointed legal aid counsel.
15. It was this feature of the trial that engaged the
attention of this Court. By order dated 08.05.2025,
this Court found that the appointment of a legal aid
counsel and the recording of the complete deposition
of the star prosecution witness on the self-same day,
without the counsel being afforded any opportunity to
prepare, had occasioned grave prejudice to the
appellant in the matter of her cross-examination,
while recording that in all other respects the trial had
been conducted with remarkable precision. Invoking
its powers under Section 391 read with Section 367
of the CrPC, corresponding to Section 432 read with
CRL.A. NOS.429-430 OF 2020 Page 13 of 157
Section 408 of the Bharatiya Nagarik Suraksha
Sanhita, 20237, this Court directed a further
examination of the mother of the victim. The operative
directions were, in substance, that the matter be
remitted to the Trial Court for her further
examination as PW-1, that appropriate protection be
extended to her under the witness protection scheme
and that she be counselled by a Senior or Special
Public Prosecutor before entering the witness box in
view of the lapse of time and the apprehension of her
being won over, that the appellant be at liberty to
engage counsel of his own choice or to have the crossexamination
conducted through counsel assisting
him under Project 39A with the complete record being
furnished to such counsel at least fifteen days in
advance, and that the prosecution be at liberty to put
additional questions by way of re-examination if so
required.
16. In compliance with the said order, the further crossexamination
of the mother of the victim was
conducted on 14.06.2025 before the Special Judge
under the POCSO Act, Jaora, District Ratlam, after
she was once again put on oath. The further crossexamination
was carried out on behalf of the
appellant by Advocate Mr. Amit Dubey, and it was
conducted over the course of a full working day in two
7 hereinafter referred to as the "BNSS"
CRL.A. NOS.429-430 OF 2020 Page 14 of 157
sessions, the first from about 11.40 AM to 02.00 PM
and the second from about 03.20 PM to 4.35 PM. On
the conclusion of the further cross-examination, the
opportunity of re-examination was made available to
the prosecution and was not availed. The record of
the further examination, together with the original
record, was thereafter transmitted to this Court.
17. It is with the benefit of this augmented record,
comprising the original deposition of the mother of
the victim recorded on 16.07.2018 and her further
cross-examination recorded on 14.06.2025, that
these appeals have been heard. By this judgment we
take up, in the first instance, the question of
conviction, and the effect of the curative exercise so
undertaken upon the appreciation of the evidence is
a matter to which we shall presently return.
PART V - THE SUBMISSIONS OF THE PARTIES
18. Mr. C.U. Singh, learned Senior Counsel appearing for
the appellant, assailed the concurrent findings of the
courts below resting on the following primary
arguments:
18.1. The Senior Counsel for the appellant assailed
the conviction principally on the ground that
the prosecution case rests upon the testimony
of PW-1, the mother of the victim, whose
evidence, according to him, is unreliable. It was
CRL.A. NOS.429-430 OF 2020 Page 15 of 157
submitted that PW-1 introduced material facts
for the first time in court, although they did not
appear in her statements under Sections 161
and 164 of the CrPC, and that these omissions
went to the root of the prosecution case. Her
testimony was also attacked on the grounds of
internal contradictions, unnatural conduct,
delay in disclosure, access to a mobile phone
and alleged contradiction with PW-4.
18.2. On sentence, it was submitted that the case did
not fall within the rarest of rare category. The
appellant relied upon the mitigation material
now placed before this Court, including his
childhood deprivation, absence of criminal
antecedents, satisfactory jail conduct, family
ties and the absence of any material from the
State establishing that he was beyond reform.
It was urged that in any event the intermediate
sentence of imprisonment for the remainder of
natural life would adequately meet the ends of
justice.
19. Per contra, learned counsel appearing for the State
supported the judgments of the courts below. It was
submitted that the core testimony of PW-1 remained
unshaken despite two cross-examinations and stood
corroborated by the medical evidence, the victim’s
disclosure, the call detail record, the extra-judicial
confession and the conduct of the appellant. The
CRL.A. NOS.429-430 OF 2020 Page 16 of 157
State submitted that the omissions relied upon by the
appellant were either peripheral or adequately
explained, that the defence case was false, and that
the defects alleged in the investigation did not vitiate
an otherwise proved case. On sentence, the State
relied upon the extreme vulnerability of the victim,
the appellant’s position of trust, the sustained sexual
abuse, the denial of medical aid and the killing of the
child to suppress disclosure of the offence.
PART VI - THE POINTS FOR DETERMINATION
20. Having heard learned counsel for the parties at length
and having perused the entire record, we are of the
view that the following points arise for the
determination of this Court on the question of
conviction.
i) Whether the infirmity attending the recording of
the evidence of the mother of the victim as PW-
1 on 16.07.2018 stands cured by the further
cross-examination conducted pursuant to the
order of this Court dated 08.05.2025, and what
is the effect of the said exercise upon the
appreciation of her evidence?
ii) Whether the testimony of the mother of the
victim is reliable and is sufficient, read with the
corroborative material on record, to sustain the
conviction of the appellant, notwithstanding the
CRL.A. NOS.429-430 OF 2020 Page 17 of 157
omissions, the improvements, the
contradictions and the conduct attributed to
her?
iii) Whether the death of the victim is established to
be homicidal and is attributable to the
appellant?
iv) Whether the offence of aggravated penetrative
sexual assault upon the victim, a child below
twelve years of age, is established against the
appellant?
v) Whether the plea of alibi set up by the appellant
and the version of events put forth in his defence
are established or are shown to be reasonably
probable?
vi) Whether the defects and the alleged mala fides
in the investigation are of such a character as to
vitiate the prosecution case?
vii) Whether, on a consideration of the entire
evidence, the offences under Sections 302,
376(2)(f), 376(2)(n), 376AB and 201 of the IPC
and Sections 5 and 6 of the POCSO Act are
established against the appellant?
21. We propose to address these points in the course of
the analysis that follows.
CRL.A. NOS.429-430 OF 2020 Page 18 of 157
PART VII - ANALYSIS
22. Before we embark upon the analysis, it is convenient
to indicate the sequence in which we propose to
proceed, for the questions are interconnected and the
order of their consideration is deliberate. Having
answered at the threshold the question concerning
the curative exercise, we shall set out the principles
governing the appreciation of the evidence, and shall
then take up the objective medical evidence, which
establishes the substratum of the offence
independently of any oral account. It is against that
substratum that we shall examine the ocular
testimony of the mother of the victim and the attacks
mounted upon her credibility, and we shall thereafter
consider the disclosure made by the victim, the
corroborative evidence, and the scientific evidence,
before turning to the defence of the appellant and the
alleged infirmities in the investigation, and finally
recording our conclusions upon the offences and the
complete picture that emerges.
SECTION A - THE CURATIVE FURTHER CROSSEXAMINATION
AND THE RIGHT TO A FAIR TRIAL
23. The first question is whether the infirmity attending
the original cross-examination of PW-1 has been
remedied by the further cross-examination conducted
pursuant to the order of this Court dated 08.05.2025.
CRL.A. NOS.429-430 OF 2020 Page 19 of 157
The concern arose because PW-1, the principal
prosecution witness, had been examined and crossexamined
on 16.07.2018 by a legal aid counsel
appointed on the very same day, without any real
opportunity to prepare. In a capital case, such a
course plainly fell short of the standard of effective
legal assistance and meaningful cross-examination
guaranteed by Article 21.
24. The defect, however, was confined to the crossexamination
of one witness, though an important
one. It did not infect the entire trial. Sections 391 and
367 of the CrPC empower the appellate court, and the
court dealing with a death reference, to take or direct
the taking of further evidence where it is necessary
for a just decision. The course adopted by this Court,
namely directing the further cross-examination of
PW-1 with adequate protection to the witness and full
access to the record to the defence, was therefore a
proportionate cure rather than a retrial.
25. The further cross-examination was conducted on
14.06.2025 before the Special Judge under the
POCSO Act. The appellant was represented by
counsel of his choice, the complete record had been
made available in advance, and the witness was
cross-examined at length on every material aspect,
including the omissions and contradictions now
pressed before us. The prosecution was given an
opportunity of re-examination but did not avail it. No
CRL.A. NOS.429-430 OF 2020 Page 20 of 157
specific line of cross-examination that remained
unavailable, nor any concrete residual prejudice, has
been demonstrated.
26. We therefore hold that the defect in the original crossexamination
has been adequately remedied. The
evidence of PW-1 must now be appreciated by reading
together her deposition dated 16.07.2018 and her
further cross-examination dated 14.06.2025, with
due allowance for the passage of time between the
occurrence and the further examination.
SECTION B - THE PRINCIPLES OF APPRECIATION
27. Since the prosecution rests its case in large measure
upon the testimony of the mother of the victim, and
since her evidence has been assailed on the grounds
of omissions, improvements, contradictions and
conduct, it is necessary to set out the principles by
which the evidence of such a witness is to be
appreciated, before we apply those principles to the
evidence on record.
28. The first principle concerns the sufficiency of a
solitary witness. It is not the law that the testimony
of a single witness, howsoever reliable, must be
discarded for want of a plurality of witnesses. Section
134 of the Indian Evidence Act, 18728 provides in
unequivocal terms that no particular number of
8 hereinafter referred to as the “Evidence Act”
witnesses shall in any case be required for the proof
of any fact. The provision reads as follows:
"134. Number of witnesses.— No particular
number of witnesses shall in any case be
required for the proof of any fact."
The principle enshrined in the said provision is
that evidence is to be weighed and not counted,
and that the conviction of an accused may rest
upon the testimony of a single witness if that
testimony is found to be reliable and inspires
confidence. This Court, as early as in Vadivelu
Thevar v. State of Madras9, held that a court
may act upon the testimony of a single witness
though uncorroborated, and that if the testimony
of a solitary witness is wholly reliable, a conviction
may be founded upon it. We are conscious, at the
same time, that where the solitary witness is
closely related to the deceased and to the accused,
and where her evidence has been the subject of a
searching attack, the prudent course is to seek
corroboration in the material particulars of her
account. We do not, therefore, approach the
evidence of the mother of the victim on the footing
that she is a witness of such flawless quality that
her word must be accepted without more. We
approach her evidence on the footing that if the
9 (1957) 1 SCC 700
CRL.A. NOS.429-430 OF 2020 Page 22 of 157
core of her account is found to be reliable and is
corroborated in its material particulars by the
other evidence on record, it may safely be acted
upon, and it is by that standard, and no lower one,
that we have tested her testimony.
29. The second principle concerns the character of a
related witness. It was faintly suggested by the
appellant that the mother of the victim, being the wife
of the appellant, was an interested witness whose
evidence must be viewed with suspicion. The
suggestion proceeds upon a confusion between a
related witness and an interested witness, which this
Court has repeatedly cautioned against. A related
witness is one who is connected by blood or by
marriage to the victim or to the accused, whereas an
interested witness is one who has a motive to see the
accused convicted for reasons other than the
vindication of the truth, such as a pre-existing enmity
or an expectation of gain. The two are not the same,
and the evidence of a related witness cannot be
discarded merely on the ground of relationship. This
Court held in Dalip Singh v. State of Punjab10, that
a witness is normally to be considered independent
unless he springs from sources which are likely to be
tainted, and that a relation would not conceal the
actual culprit and make allegations against an
10 (1953) 2 SCC 36
CRL.A. NOS.429-430 OF 2020 Page 23 of 157
innocent person in order to wreak vengeance, but
would ordinarily be the last to screen the real
offender. The distinction was reaffirmed by this Court
in State of Rajasthan v. Kalki11, and in Goverdhan
v. State of Chhattisgarh12, wherein it was explained
that the related witness is not necessarily an
interested witness, and that the evidence of a related
witness, if found to be reliable, requires no
corroboration and may be acted upon.
30. These principles acquire a particular force in the
present case. The witness who has deposed against
the appellant is not a stranger who might harbour
some ulterior design against him. She is his wife, and
she is the mother of the child who was the victim of
the crime. A woman in her position, in deposing to
the rape and the murder of her own child, does not
merely give evidence against a stranger. She testifies
against her own husband, and in doing so she
renounces her marriage, forfeits the shelter and the
maintenance that the marriage afforded her, exposes
herself to the hostility of the family into which she
married, and courts the social opprobrium that in the
milieu to which she belongs attaches to a woman who
breaks her home. That she was willing to endure all
of this in order to accuse the appellant powerfully
attests to her credibility. A mother is, in the
11 (1981) 2 SCC 752
12 (2025) 3 SCC 378
CRL.A. NOS.429-430 OF 2020 Page 24 of 157
considered view of this Court, ordinarily the last
person who would shield the murderer of her own
child and substitute an innocent man in his place.
31. The third principle concerns the appreciation of
evidence in cases of sexual offences and of crimes
committed within the privacy of the home. Offences
of this nature are seldom committed in the presence
of witnesses. The sexual abuse of a child within the
household, in particular, is perpetrated in secrecy
and in stealth, and the persons ordinarily present are
the perpetrator, the child and, if at all, a member of
the household who is powerless to prevent it. To
insist, in such cases, upon the kind of corroboration
that might be available in a crime committed in the
open would be to insist upon a standard that the very
nature of the offence renders impossible of
attainment, and would be to grant to those who prey
upon children within the home an immunity founded
upon the secrecy in which they cloak their crime. This
Court, in State of Punjab v. Gurmit Singh13,
deprecated the tendency to view the evidence of the
prosecutrix in a sexual offence with suspicion, and
held that such evidence is to be appreciated with
sensitivity and realism, and that minor contradictions
or insignificant discrepancies which do not touch the
core of the prosecution case ought not to be a ground
13 (1996) 2 SCC 384,
for throwing out an otherwise reliable case. The same
sensitivity governs the appreciation of the evidence of
the mother of a child victim, who is often the only
person in a position to speak to what was done to the
child behind the closed doors of the home.
32. The fourth principle concerns the treatment of a
witness whose evidence is found to be partly
acceptable and partly not. The appellant's
submission, reduced to its essence, is that because
the mother of the victim omitted certain facts from
her earliest statements and introduced others for the
first time in court, her testimony must be rejected in
its entirety. That submission invokes, in substance,
the maxim falsus in uno, falsus in omnibus, that
is, false in one thing, false in everything. It is well
settled that the said maxim is not a rule of law in
India, and is at best a rule of caution. The duty of the
court is not to reject the whole of a witness's evidence
upon finding a part of it to be unacceptable, but to
sift the truth from the falsehood, to separate the grain
from the chaff, and to act upon that part of the
evidence which it finds to be reliable after a careful
scrutiny, provided that the acceptable part can be
safely separated from the rest and is corroborated by
the other evidence on record. This Court, in State of
U.P. v. M.K. Anthony14, held that the evidence of a
14 (1985) 1 SCC 505
CRL.A. NOS.429-430 OF 2020 Page 26 of 157
witness must be read as a whole and in the context
of the case, that minor discrepancies on trivial
matters not touching the core do not corrode the
credibility of an otherwise reliable witness, and that a
rustic or an illiterate witness cannot be judged by the
standards of precision expected of an educated one.
These principles have been consistently reiterated,
including in the recent decisions of this Court in
Selvamani v. State of T.N.15, and in Goverdhan v.
State of Chhattisgarh16, wherein it has been
reaffirmed that even where omissions, contradictions
and discrepancies exist, the whole of the evidence is
not to be discarded, and the court must sift the
reliable from the embellished and determine whether
the residue establishes the guilt of the accused.
SECTION C- THE OBJECTIVE SUBSTRATUM: THE
MEDICAL EVIDENCE
33. Having set out the principles that govern the
appreciation of the evidence, we now turn to the
evidence itself, and we begin not with the oral account
of the mother of the victim but with the medical
evidence, for a deliberate reason. The oral testimony
of a solitary witness is best assessed not in a vacuum
but against whatever objective and incontrovertible
facts the record independently establishes. The
medical evidence in this case furnishes precisely such
15 (2024) 19 SCC 112
16 (2025) 3 SCC 378
CRL.A. NOS.429-430 OF 2020 Page 27 of 157
an objective substratum. It is the evidence of a
professional witness who had no interest in the
outcome, it rests upon physical findings recorded
upon the body of the victim, and it stands wholly
independent of the account of the mother. If the
medical evidence establishes the corpus of the
offence, then the oral testimony falls to be tested
against an established foundation of fact rather than
upon its own strength alone. It is for this reason that
we take up the medical evidence first.
34. The post-mortem examination upon the body of the
victim was conducted on 24.04.2018 at about 11 a.m.
by PW-6, and the post-mortem report was proved as
an exhibit on the record. The autopsy surgeon
deposed, and the report records, that the cause of
death of the victim was asphyxia as a result of
throttling, that the death was homicidal in nature,
and that the time of death was within about fortyeight
hours preceding the examination. The opinion
as to the cause of death was founded upon objective
signs, including the injuries observable upon the
neck of the victim, consistent with the compression of
the throat by hand. There is no material on the record
to doubt the competence of the autopsy surgeon or
the correctness of the opinion, and the finding as to
the cause of death was not seriously assailed before
us.
CRL.A. NOS.429-430 OF 2020 Page 28 of 157
35. Two conclusions of the utmost importance follow
from this evidence, and they follow independently of
the oral testimony of any witness. The first is that the
death of the victim was homicidal, and was
occasioned by manual strangulation. This is not a
case in which the fact of a homicide is itself in doubt,
or in which the death is capable of being attributed to
natural causes, to accident or to disease. The medical
evidence puts it beyond doubt that the child was
throttled to death. The second conclusion concerns
the time of death. The post-mortem examination
having been conducted at about 11:00 AM on
24.04.2018, and the death being opined to have
occurred within about forty-eight hours prior thereto,
the death is thereby fixed to a period that comfortably
includes the afternoon of 23.04.2018, which is the
very time at which, on the prosecution case, the
appellant is said to have throttled the victim. The
medical evidence thus independently corroborates
the prosecution case both as to the manner and as to
the approximate time of the death.
36. The post-mortem report is significant in a further and
distinct respect. It records the presence of a small tear
at the fourchette with oozing of blood, and the
autopsy surgeon opined that this injury was
indicative of sexual assault. The fourchette is the
posterior commissure of the labia, and a fresh tear at
that site accompanied by bleeding is a finding
CRL.A. NOS.429-430 OF 2020 Page 29 of 157
consistent with recent penetrative sexual assault
upon the child. This finding, it must be emphasised,
is an objective physical finding recorded upon the
body of the victim at the post-mortem examination,
and it is wholly independent of the account of the
mother of the victim. The injury constitutes objective
medical evidence strongly consistent with recent
penetrative sexual assault and materially
corroborates the account concerning the sexual
violation of the victim. We shall have occasion, when
we come to consider the scientific evidence and the
defence, to address the submission founded upon the
absence of male DNA in the vaginal smear, and it is
sufficient at this stage to record that the physical
injury to the genitalia of the child stands proved as a
fact by the medical evidence.
37. The evidence of PW-8, the doctor who conducted the
pre-medico-legal examination at the Civil Hospital,
Jaora, on the evening of 23.04.2018, is consistent
with and reinforces the conclusion that the death was
unnatural, and it was upon the report of PW-8 that
the machinery of the criminal law was set in motion
by the registration of the report of unnatural death.
We shall return to the sequence of the reporting when
we deal with the submissions concerning the
investigation, and it is sufficient at this stage to note
that the medical evidence, taken as a whole,
establishes an unnatural and homicidal death by
CRL.A. NOS.429-430 OF 2020 Page 30 of 157
throttling and a recent sexual assault upon the
victim.
38. It is at this point that the setting of the crime assumes
a decisive significance, and it is convenient to
introduce it here, for it forms the backdrop against
which the entirety of the evidence must be read. The
offences were committed within the four walls of the
matrimonial home at village Kushalgarh. As per the
case of both the prosecution and the defence, the only
adults who ordinarily resided in that home were the
appellant and the mother of the victim. The victim
was a child of about six years. It is a settled principle
of the law of evidence that where an offence takes
place inside the privacy of a house, in which the
inmates of the house are in a position to know how
the crime was committed, and where the death of a
person is shown to have occurred in circumstances
within the special knowledge of the accused, a
corresponding burden is cast upon the inmate of the
house to offer a cogent explanation as to how the
crime was committed, and a false or an absent
explanation becomes an additional link in the chain
of circumstances. This principle finds statutory
recognition in Section 106 of the Evidence Act, which
provides as follows:
"106. Burden of proving fact especially
within knowledge.—When any fact is
especially within the knowledge of any
CRL.A. NOS.429-430 OF 2020 Page 31 of 157
person, the burden of proving that fact is
upon him."
39. This Court, in Trimukh Maroti Kirkan v. State of
Maharashtra17, explained the application of the said
principle to offences committed within the secrecy of
the home. It was held that where an accused is
alleged to have committed the murder of a person and
the offence is alleged to have taken place inside the
four walls of a house in circumstances where the
accused had a special knowledge of the events, the
accused is under an obligation to give a plausible
explanation for the cause of the death in his
statement under Section 313 of the CrPC, and the
absence of such an explanation, or the giving of a
false explanation, would itself be an additional link in
the chain of circumstances that completes the chain.
We shall carry this principle with us through the
analysis that follows, for the appellant was, on his
own showing as well as on the prosecution case, an
inmate of the home in which the victim met her death,
and the burden of accounting for how a child living in
that home came to be sexually assaulted and
throttled to death is one that rests, in the manner and
to the extent explained in Trimukh Maroti (Supra) ,
upon him.
17 (2006) 10 SCC 681
CRL.A. NOS.429-430 OF 2020 Page 32 of 157
40. The medical evidence thus establishes, independently
of any oral account, a homicidal death by throttling
on or about 23.04.2018 and a recent sexual assault,
within a home whose only adult occupants were the
appellant and the mother. It is against this
substratum that we now examine the ocular
testimony of the mother of the victim.
SECTION D - THE OCULAR ACCOUNT OF THE
MOTHER OF THE VICTIM
41. Against the substratum established by the medical
evidence, we now examine the ocular account of the
mother of the victim, who was examined as PW-1 and
who is the solitary eyewitness to the events that
unfolded within the home. Her evidence comprises
her deposition recorded on 16.07.2018 and her
further cross-examination recorded on 14.06.2025,
and, in conformity with the standard we have already
laid down, we read the two together as constituting
the whole of her testimony. We propose in this section
to set out the substance of her account in her own
words on the matters that lie at the heart of the case,
and to record our impression of it, reserving for the
section that follows our consideration of the several
attacks that have been mounted upon her credibility.
42. On the antecedent sexual abuse of the victim, the
mother deposed in her examination-in-chief to what
she had seen with her own eyes. She described the
CRL.A. NOS.429-430 OF 2020 Page 33 of 157
sleeping arrangement in which the appellant would
place himself between her and the child, and she
stated that one night, on lifting the blanket, she saw
the appellant with his hand inside the undergarment
of the victim. In her own words, recorded on
16.07.2018, she deposed as follows.
"One day I saw in the night, that day, the
accused varish turned on my girl's side
and put her to sleep sticking to her and
then I lifted the blanket and saw the
accused moving hands in the underwear of
my daughter touching private parts."
She went on to depose that when she objected, the
appellant threatened her, and she described the
threat in these terms.
"I objected but he threatend me to bury we
both. He threatened to put imputation on
us for fled away with some one else ."
43. On the events of the night of 21.04.2018, which
constitute the immediate occasion of the sexual
assault, the mother gave a detailed and graphic
account. She described how the appellant confined
her to the rear room, how she heard the muffled sobs
of her child, how she beat upon the door and adjured
him in the name of Allah, and how, upon the door
being opened, she found the child in a distressing
condition. She then deposed to what the child herself
told her, and we shall have occasion in a later section
to consider the legal character and effect of that
CRL.A. NOS.429-430 OF 2020 Page 34 of 157
disclosure. For the present, it is sufficient to set out
her description of the condition in which she found
the child, recorded in her deposition of 16.07.2018.
"Then I saw that my girl was suffering and
my girl was not wearing both leggings and
underwear and also kept her black color
kurti high."
She deposed that on examining the child she found
the private part of the victim to be swollen and red,
that the child complained of pain, and that the child
was restless and vomited through the night.
44. On the events of 23.04.2018, which constitute the
occasion of the murder, the account of the mother lies
at the very core of the prosecution case, and it is
necessary to set it out with some fullness. She
deposed that upon the return of the appellant to the
house at about noon, his very first concern was not
for the deteriorating condition of the child but was to
ascertain whether the child had spoken to her
mother. In her words, recorded on 16.07.2018:
"Then the accused came home at 12:00 pm
and told me that whether [victim’s name]
told you something or else, i replied the
accused that she did not tell me anything."
She then deposed that when she pressed that the
child be taken to hospital, the appellant refused, that
she thereafter went to another room to cook, and that
CRL.A. NOS.429-430 OF 2020 Page 35 of 157
on hearing the child scream she returned to the child.
She described what she then saw in these words,
recorded on 16.07.2018:
"Before my cooking, the accused told me
that my girl was pretending, then I had
gone to the kitchen. After going to another
room, I heard my girl screaming, then I
came to my girl and saw that the accused
had strangled my girl's throat with
both hands and removed her18 hands
immediately after seeing me. When I
saw my baby girl, she had turned her
eyes. I had also seen his fingerprints
on [victim’s name]’s throat, at that time
the accused was trembling with fear and
was sweating and was saying that I did
not kill." (emphasis supplied)
45. The mother did not depose merely that the appellant
had killed the child, which would have been the
natural assertion of a witness bent upon a bald
implication. She described a specific and particular
scene, namely the appellant caught in the very act
with both hands upon the throat of the child, the
instinctive withdrawal of the hands the moment he
was seen, the turned eyes of the dying child, the
impressions of the fingers left upon the small throat,
and the appellant sweating and trembling and
unprompted in his denial. The impressions of the
fingers upon the throat, spoken to by the mother, are
in complete accord with the opinion of the autopsy
18 *His (Typographical error in translation).
CRL.A. NOS.429-430 OF 2020 Page 36 of 157
surgeon that the death was caused by throttling, that
is, by manual strangulation. The account of the
mother and the finding of the medical evidence thus
dovetail with one another, and the one authenticates
the other. A witness who was inventing a false scene
would have been under no compulsion to furnish
detail of this order, and the correspondence between
the finger impressions she described and the cause of
death established by the autopsy is a powerful
indication of the truth of her account. Equally telling
is the first reaction of the appellant upon his return,
which was to enquire not after the health of the
gravely ailing child but whether the child had
disclosed anything to her mother, a reaction to which
we shall return when we consider the conduct of the
appellant.
46. The account of the mother did not stand alone in her
examination-in-chief. It withstood the test of crossexamination
on both occasions on which she was
cross-examined, separated as those occasions were
by nearly seven years. In her original crossexamination
on 16.07.2018 she adhered to her
account and repelled the suggestions put to her,
affirming in terms that she had witnessed the events
with her own eyes, in the following words recorded on
that date:
CRL.A. NOS.429-430 OF 2020 Page 37 of 157
"The accused strangled my girl. It is wrong
to say that the accused never strangled my
girl. It is wrong to say that the accused did
not do any wrong act with [victim’s name].
I have seen it with my own eyes. It is
wrong to say that I am making false
statements in the court today." (emphasis
supplied)
In her further cross-examination on 14.06.2025,
conducted at length by counsel of the appellant's
choice, she once again withstood a sustained
challenge to the core of her account, and, when
the suggestions of false implication were put to
her, she rejected them in categorical terms, in the
following words recorded on that date:
"It is wrong to say that the accused
Waris did not rape my daughter
repeatedly. It is wrong to say that the
accused Waris never raped my
daughter. It is wrong to say that I have
lodged a false case of rape and murder
against the accused Waris and recorded
statements under pressure from the police.
It is wrong to say that I used to beat my
daughter, due to which she died. ... It is
wrong to say that I am recording false
statements in the court today to falsely
implicate the accused."
(emphasis supplied)
47. We are conscious that the mere consistency of a
witness is not, by itself, a guarantee of truth, and that
a false account may be adhered to as tenaciously as
a true one. We do not therefore rest upon consistency
CRL.A. NOS.429-430 OF 2020 Page 38 of 157
alone. What persuades us of the essential reliability
of the core of her account is the conjunction of several
features, namely the particularity of her description
of the scene of the throttling, the correspondence of
that description with the independent medical
evidence, the inherent improbability of a mother
fabricating such a charge against her own husband
concerning her own child, and the further
circumstance, to which we now turn, that her
account is corroborated upon a verifiable particular
by the objective record.
48. That verifiable particular is the telephone record. The
mother deposed that on the morning of 23.04.2018,
finding the condition of the child worsening, she
telephoned the appellant twice on his mobile, and she
placed the timing of those calls at between 09:00 AM
and 09.30 AM. In her further cross-examination on
14.06.2025 she deposed as follows:
"It is correct to say that on 23.04.2018, I
called the accused Waris on his mobile
when my daughter was unwell. It is correct
to say that I called Waris twice on that
morning. I called him between 9:00 am and
9.30 am."
The call detail record on the file, which was placed
on the record by the prosecution, bears out this
account, for it records two calls made from the
mobile telephone used by the mother to the mobile
CRL.A. NOS.429-430 OF 2020 Page 39 of 157
telephone of the appellant on 23.04.2018 at
09:20:30 hours and at 09:21:24 hours, that is, two
calls in close succession within the very window of
time that the mother described. This is
corroboration of her account upon a particular that
is objectively verifiable and that lay beyond her
power to fabricate, for she could not have known,
and could not have contrived, that the telephone
records of the network would confirm two calls at
those precise moments. Where the testimony of a
witness is found to be accurate upon a matter that
admits of independent and objective verification,
the court is justified in extending to that witness a
measure of credence upon the matters that do not
so admit of verification, unless there be good reason
to withhold it. We find in the telephone record a
significant assurance of the reliability of the mother
of the victim.
49. For these reasons, we are satisfied that the core of the
account of the mother of the victim, namely that the
appellant subjected the victim to sexual assault and
thereafter throttled her to death within the
matrimonial home, is reliable and is corroborated by
the objective medical evidence and by the telephone
record. Her testimony has, however, been assailed on
several grounds, to which we now turn.
CRL.A. NOS.429-430 OF 2020 Page 40 of 157
SECTION E - THE ASSAULT UPON THE CREDIBILITY
OF THE MOTHER OF THE VICTIM
50. The reliability of the account of the mother of the
victim, which we have found to be established at its
core, has been assailed by the appellant from several
directions, and it is necessary to address each line of
attack, for a finding of reliability cannot rest secure
until the challenges to it have been met. The attacks
are five in number. The first is that her deposition
before the court contains a series of material
omissions when compared with her earliest
statements to the police and to the Magistrate. The
second is that her further cross-examination is
riddled with internal contradictions. The third is that
her conduct was so unnatural as to belie her account.
The fourth is that the call detail record demolishes
her case of isolation and fear. The fifth is that her
evidence stands contradicted by that of PW-4 and
that she was made to depose falsely at the instance
of PW-4. We take up these attacks in turn.
E.1 The alleged material omissions
51. The principal and most strenuously pressed attack is
founded upon the omissions in the earliest
statements of the mother of the victim. It is pointed
out that a number of facts to which she deposed
before the court found no mention in her statement
CRL.A. NOS.429-430 OF 2020 Page 41 of 157
recorded under Section 161 of the CrPC on
24.04.2018 or in her statement recorded under
Section 164 of the CrPC on 26.04.2018, and that she
candidly admitted these omissions in her further
cross-examination on 14.06.2025. It is urged that
omissions of this magnitude reduce her court
testimony to an afterthought. To assess this
submission it is necessary first to state the legal
framework, and then to apply it to the facts.
52. A statement recorded under Section 161 of the CrPC
in the course of investigation is not substantive
evidence. It is a previous statement, and the use that
may be made of it is strictly circumscribed by Section
162 of the CrPC, which provides that no such
statement shall be used for any purpose at the trial,
save that it may be used to contradict its maker in
the manner provided by Section 145 of the Evidence
Act. The Explanation to Section 162 of the CrPC
further provides that an omission to state a fact in
such a statement may amount to a contradiction only
if it appears to be significant and otherwise relevant
having regard to the context, and that whether it does
so is a question of fact. The substantive evidence in a
criminal trial is therefore the testimony given on oath
before the court, and it is that testimony, and not the
earlier statement to the police, which furnishes the
material for decision. The earliest statements of the
mother are thus not the benchmark of truth against
CRL.A. NOS.429-430 OF 2020 Page 42 of 157
which her court testimony is to be measured, and
their only legitimate use is to contradict her in the
manner the law permits. A statement recorded under
Section 164 of the CrPC, though recorded by a
Magistrate, is likewise not substantive evidence, and
it too may be used only to corroborate or to contradict
its maker.
53. The manner of such contradiction is prescribed by
Section 145 of the Evidence Act, which provides as
follows:
"145. Cross-examination as to previous
statements in writing.—A witness may be
cross-examined as to previous statements
made by him in writing or reduced into
writing, and relevant to matters in
question, without such writing being
shown to him, or being proved; but, if it is
intended to contradict him by the writing,
his attention must, before the writing can
be proved, be called to those parts of it
which are to be used for the purpose of
contradicting him."
The language of the provision is explicit. If it is
intended to contradict a witness by a previous
statement in writing, her attention must, before
the writing can be so used, be called to those
specific parts of it which are to be used for that
purpose. A general assertion that a fact was not
stated earlier does not satisfy the provision.
CRL.A. NOS.429-430 OF 2020 Page 43 of 157
54. Nor does an omission amount to a contradiction as a
matter of course. The question was authoritatively
settled by the Constitution Bench of this Court in
Tahsildar Singh v. State of U.P.19, wherein it was
explained that an omission attains the character of a
contradiction only where the omitted fact is
irreconcilable with the statement made in the witness
box, that is to say, where what was stated in court
and what was omitted before the police cannot both
be true, or where the omission is of a fact which, had
it been true and within the knowledge of the witness,
she would in the ordinary course have been expected
to state. A mere failure to mention a detail which the
narration did not call for, and which is not
irreconcilable with the court version, is an omission
simpliciter and not a contradiction. This position has
been reiterated by this Court in Vijayakumar v.
State of Tamil Nadu20, which reaffirms that the
writing must be specifically put to the witness if it is
to be used for contradiction, and that an omission
ripens into a contradiction only when it is significant
and otherwise relevant in the context.
55. Consequently, two stages of inquiry follow. The first
is whether the omission relied upon is irreconcilable
with the court testimony, so as to amount to a
contradiction at all. The second, which arises only if
19 1959 SCC OnLine SC 17
20 2026 INSC 525
CRL.A. NOS.429-430 OF 2020 Page 44 of 157
the first threshold is crossed, is whether the
omission, being a contradiction, is material, that is,
whether it goes to the root or touches only a
peripheral detail. It is only a material contradiction
going to the core that can impair the substratum of
the testimony. In applying these two stages, it is
convenient to classify the omissions relied upon, for
they are not of a single kind, and to lump them
together is to obscure the analysis. The omissions fall
into three distinct categories. The first category
comprises facts of a background and explanatory
character, namely the prior ill-treatment of the child,
the prohibition upon attending the Anganwadi, the
earlier threats, the prior incident of strangulation, the
episode relating to the function at the house of Tahira
Bi, and the burning of the child's leg. The second
category comprises facts relating to the core incident,
namely the sexual assault upon the child and the
throttling of the child by the appellant. The third
category comprises the details that emerged for the
first time in the further cross-examination conducted
in the year 2025. Each category calls for a distinct
treatment.
56. As regards the first category, the background and
explanatory facts, the nature of the omissions is
illustrated by the admissions of the witness herself.
Thus, of the prohibition upon the child attending the
Anganwadi, she admitted in her further crossCRL.
A. NOS.429-430 OF 2020 Page 45 of 157
examination that in her statements under Sections
161 and 164 of the CrPC she had not stated that fact.
Of the earlier incident of strangulation, she admitted,
in her own words:
"It is correct to say that in my police
statement (Section 161 Cr.P.C.) Exhibit
D.03 and statement (Section 164 Cr.P.C.)
Exhibit D.04, I have not stated that 'Once
he killed my daughter by choking her.
When I rescued her, he beat me up too.'"
And of the threat held out by the appellant, she
admitted that she had not stated in those earlier
statements that the appellant had threatened to
bury her and the child and to proclaim that she
had eloped. These are, every one of them, facts of
a background and explanatory character. They
establish the atmosphere of the household and the
antecedent conduct of the appellant, and they
supply the context and the motive, but they are not
themselves the ingredients of the offences with
which the appellant stands charged. A statement
recorded under Section 161 of the CrPC is
ordinarily recorded briefly, in the language of the
recording officer and not of the witness, in the
immediate aftermath of a traumatic event, and it is
neither expected nor required to be an exhaustive
catalogue of every antecedent circumstance. The
mother of the victim was, moreover, an illiterate
CRL.A. NOS.429-430 OF 2020 Page 46 of 157
woman who affixed her thumb impression to
statements that were recorded by others and that
she could not herself read to verify. In these
circumstances, the omission from her earliest
statements of the background facts relating to the
antecedent abuse and the atmosphere of the
household is readily explicable, and it does not
detract from the reliability of her account of the
core events. Their omission goes, at the highest, to
the weight to be attached to those background
facts, and not to the credibility of her account as a
whole.
57. As regards the second category, the core incident
facts, a stricter scrutiny is warranted, for an omission
from the earliest statement of the very facts
constituting the offence would be a matter of serious
consequence. On such scrutiny, however, we find
that the substratum of the prosecution case was not
omitted from the earliest statements at all. Of the
scene of the throttling, she admitted in her further
cross-examination that a particular sentence of her
deposition had not found place in her earlier
statements, in these words:
"In my police statement (Section 161
Cr.P.C.) Exhibit D.03 and statement
(Section 164 Cr.P.C.) Exhibit D.04, I did not
CRL.A. NOS.429-430 OF 2020 Page 47 of 157
state that, 'When I came near my daughter,
she removed her hands.21'"
It will be seen at once that what was admitted to
have been omitted was not the fact that the
appellant throttled the child, but the particular
detail that the appellant removed his hands as the
mother approached. The core accusation, that the
appellant strangled the child, was not the subject
of the omission at all. So too, of the appellant's
conduct after the death, she admitted that certain
of the sentences describing his refusal to take the
child to hospital and the summoning of a private
doctor who did not touch the child were not
contained in her earlier statements, but here again
these are details of the appellant's conduct
surrounding the killing, and not the fact of the
killing itself. The core of the accusation, namely
that the appellant subjected the child to sexual
assault and that he throttled her to death, was
present from the earliest stage, and it is only the
elaboration of the detail of that accusation that was
added in the sworn deposition. The addition of
detail at the trial, upon a foundation that was laid
at the earliest stage, is a familiar and an
unexceptionable feature of the evidence of a
truthful witness, and is to be distinguished from
21 *He removed his hands (Typographical error in translation).
CRL.A. NOS.429-430 OF 2020 Page 48 of 157
the introduction, for the first time at the trial, of a
wholly new and previously unstated accusation. A
statement recorded under Section 161 of the CrPC
is not a dress rehearsal of the evidence, and this is
especially so where, as we have found, the core of
the deposition is independently corroborated by
the medical evidence and by the telephone record.
58. As regards the third category, the details that
emerged in the further cross-examination of 2025, we
have already indicated the standard by which they
are to be assessed. That cross-examination was
conducted nearly seven years after the events, and
this Court, in directing it, was itself alive to the
likelihood that the lapse of time would have taken its
toll upon the recollection of the witness. Answers
elicited in the course of that exercise are to be read
together with, and in the light of, her original
deposition, and not as though they displaced it. A
witness recalling, after seven years, a detail not
earlier articulated, or misremembering a peripheral
particular, is exhibiting the ordinary frailty of human
memory and not the cunning of a fabricator. We
decline to treat the additions and the variations of the
2025 cross-examination as impairing the core of an
account that was given much closer to the events and
that is corroborated by the objective evidence.
CRL.A. NOS.429-430 OF 2020 Page 49 of 157
59. It is not without significance that the omissions relied
upon by the appellant are known to the record only
because the witness herself, in her further crossexamination,
candidly admitted them. Confronted
with each of the sentences of her deposition, she did
not prevaricate or attempt to deny the omission, but
acknowledged in each instance that the fact had not
found place in her earlier statements. A witness bent
upon deceiving the court would have been tempted to
assert that she had stated these facts to the police all
along and that the recording officer had failed to
record them. The candour with which she admitted
the omissions is itself a circumstance that speaks to
her truthfulness rather than against it.
60. There is a further and overarching answer to the
entire submission founded upon the omissions, and
it lies in the settled principle that governs the
consequence of a proved contradiction. Even where
an omission is shown to amount to a contradiction,
and even where that contradiction is established in
the manner that the law requires, the consequence is
not the automatic rejection of the whole of the
testimony of the witness. The maxim falsus in uno,
falsus in omnibus is not a rule of law in this country,
as we have already observed, and the duty of the
court is to sift the truth from the exaggeration and the
embellishment, to separate the grain from the chaff,
and to act upon that part of the testimony which,
CRL.A. NOS.429-430 OF 2020 Page 50 of 157
after a careful scrutiny, it finds to be reliable and
corroborated. This Court, in Selvamani v. State
(Supra) has reiterated that the existence of omissions,
contradictions and discrepancies does not entitle a
court to discard the entirety of the evidence, and that
the court must sift the evidence and determine
whether the residue, after the embellishments are set
aside, is sufficient to establish the guilt of the
accused. Applying that principle, even if every
omission relied upon by the appellant were treated as
a proved contradiction, the result would not be the
effacement of her testimony but the setting aside of
the peripheral embellishments, leaving intact the
corroborated core, namely that the appellant sexually
assaulted the child and throttled her to death, which
is the finding upon which the conviction rests.
E.2 The alleged internal contradictions
61. The second attack upon the credibility of the mother
of the victim is that her further cross-examination is
riddled with internal contradictions, and that these
destroy the foundation of isolation and intimidation
upon which the prosecution sought to explain her
silence. The contradictions relied upon are principally
three. The first is that although she asserted that the
appellant did not permit her or the child to meet or
speak to anyone, she deposed that the child used to
CRL.A. NOS.429-430 OF 2020 Page 51 of 157
visit the house of one Munni, that the son of the
appellant named Golu used to frequent the house,
and that the appellant himself used to take her and
the child to her parental home. The second is that
although she asserted that she could not contact her
family, she deposed that her father's number was
saved in her mobile telephone and that she used to
speak to him. The third is that although she asserted
that the appellant had locked her and the child inside
the house, she admitted that when the appellant left
for the place of worship the house was not locked, and
that even then she did not go to her parental home or
to the police station.
62. We have considered these alleged contradictions with
care, and we are unable to regard them as
contradictions at all, for they proceed upon a
misreading of what the witness deposed and upon a
misconception of the nature of the confinement she
described. The confinement to which she deposed
was not a case of a woman kept under lock and key
in perpetual solitude. It was a case of a woman whose
movement, whose contacts and whose access to the
outside world were regulated and controlled by the
appellant. That much appears from her own words,
for even as she described the visits of Munni and of
Golu, she prefaced and qualified them by the
statement:
CRL.A. NOS.429-430 OF 2020 Page 52 of 157
"Voluntarily said that the accused Waris
did not let me go anywhere, so I do not
know the names of the people living in the
houses nearby."
The two supposed halves of the contradiction thus
sit within the same account, and once the
qualifying words are restored, the appearance of
contradiction dissolves.
63. So examined, the incidents relied upon are not
instances of freedom inconsistent with control. The
visits of Munni, who was the wife of a friend of the
appellant, and of Golu, who was the son of the
appellant, were visits of persons within the circle of
the appellant himself, and are in no way inconsistent
with a regime in which the appellant regulated with
whom his wife and the child might associate. The
submission founded upon the visits to her parental
home is answered by her own description of how
those visits took place, in these words:
"Accused Waris used to take me and my
daughter to my maternal home in Jaora on
his motorcycle. When Waris went to work,
he used to drop us both at my maternal
home and take us with him while returning
in the evening."
Far from establishing her freedom, this establishes
the very opposite, for it shows that her visits to her
own parents were undertaken not at her will but
CRL.A. NOS.429-430 OF 2020 Page 53 of 157
under the escort of the appellant and subject to his
control. A woman who can visit her parents only
when her husband chooses to take her, and in his
company, and who is retrieved by him in the
evening, is not a woman at liberty. She is a woman
whose liberty is in the keeping of another.
64. The submission founded upon the mobile telephone
can be dispelled similarly. It is true that the mother
deposed that her father's number was saved in her
telephone and that she used to speak to him. But the
same passage of her evidence discloses the true
nature of that access, for she deposed:
"I did not know how to dial a number from
my mobile. I could call only those numbers
which were saved by Waris in my mobile.
... Waris had not given my mobile number
to my parents."
A woman so placed does not possess a free means
of communication. She possesses an instrument
that functions only within the limits her husband
has set for it, and the circumstance that her
father's number was among the few that the
appellant had chosen to save does not convert her
controlled and dependent access into the freedom
of a person able to summon help at will. Her
evidence, indeed, was that the appellant had at one
stage snatched the telephone from her and deleted
CRL.A. NOS.429-430 OF 2020 Page 54 of 157
her father's number, which is the very antithesis of
free communication, for when asked whether she
had telephoned her father for help she answered:
"Accused Waris had snatched my mobile
phone from me, then she said that he had
deleted my father's mobile number from my
mobile phone."
65. The submission founded upon the house not being
locked when the appellant went to the place of
worship requires a closer word, for it was pressed
with some force. The mother did admit, and it is to be
noted that she volunteered the admission, drawing
the distinction herself in these words:
"It is true that the accused had locked me
and my daughter and left, I am telling this
for the first time in this court today. ...
Voluntarily said that on the day he22 was
beaten up, he had locked the place and
left. When the accused had gone to the
Divine Place, he had not locked the place."
It is precisely because she volunteered this
distinction, conceding against her own interest
that on the day of the visit to the Deviya Sthan, the
house was open when she could as easily have
maintained that it was always locked, that her
evidence carries the stamp of truth rather than of
contrivance. A witness bent upon fabricating a
22 *She (Typographical error in translation).
CRL.A. NOS.429-430 OF 2020 Page 55 of 157
case of total confinement would not have gone out
of her way to concede that on a particular day the
house was open. That she did so is the mark of a
witness attempting to state the facts as they were.
The further question, namely why she did not use
the occasion of the unlocked house to flee or to
seek help, does not go to the internal consistency
of her evidence at all. It goes to the reasonableness
of her conduct, and it is answered not by the law
of contradictions but by an understanding of the
situation of a woman circumstanced as she was,
which we address in the section that immediately
follows.
66. For these reasons, we hold that the alleged internal
contradictions are not contradictions at all. They
dissolve upon a correct appreciation of the nature of
the confinement described by the mother of the
victim, which was a confinement of control and
regulation and not of perpetual physical
incarceration, and the true character of which
appears from her own words once they are read as a
whole and not in dismembered fragments. The
incidents relied upon by the appellant are consistent
with, and in some instances are positive proof of, the
very regime of control that she described, and they do
not detract from the reliability of her account.
CRL.A. NOS.429-430 OF 2020 Page 56 of 157
E.3 The conduct of the mother of the victim: the
entrapped witness
67. The third and most insistent attack upon the mother
of the victim is directed not at what she said but at
what she did, and, more pointedly, at what she did
not do. It is urged that her conduct was irreconcilable
with that of a truthful witness and of a mother, in that
she made no complaint to the police or to her own
family though the abuse continued over months, that
she did not herself take the child for treatment or
summon help, that she did not flee or raise an alarm
even on the day when the house was left unlocked,
and that she washed the body of the child before it
was taken away. These circumstances, it is said, are
so unnatural that they rob her account of credibility.
This submission, which has a superficial appeal,
rests upon an assumption that must be examined,
namely that there exists a single natural manner in
which a woman so placed ought to have behaved, and
that a departure from it betrays falsehood. We are
unable to accept the assumption, and we consider it
necessary to explain why, for the point is of
importance well beyond this case.
68. It must be emphasized that human beings do not
react to trauma, to terror and to abuse in a uniform
or a predictable manner, and that there is no
standard or model response against which the
conduct of a victim or a witness may be measured
CRL.A. NOS.429-430 OF 2020 Page 57 of 157
and, if found wanting, condemned as false. This
Court has repeatedly cautioned that different people
react differently to a given situation, and that the
court must not substitute for the actual conduct of
the witness its own notion of how a reasonable person
ought to have behaved. In Rana Partap v. State of
Haryana23, this Court observed that every person
who witnesses a serious crime reacts in his own way,
that there is no set rule of natural reaction, and that
to discard the evidence of a witness on the ground
that he did not react in a particular manner is to
appreciate evidence in a wholly unrealistic manner.
This Court has, more recently, deprecated in the
strongest terms the tendency to judge the conduct of
women who are victims of, or witnesses to, sexual
crime against stereotyped assumptions of how such
a woman ought to comport herself, and in XYZ v.
State of M.P., 24it was emphasised that courts must
not resort to notions of the appropriate or expected
behaviour of a woman and must guard against
assessing her credibility by reference to such
stereotypes. The reticence of a victim of a sexual
offence, or of a person compelled to witness one, may
spring from fear, from shame, from social constraint
or from a well-founded apprehension of the
consequences of speaking, and delay or silence
23 (1983) 3 SCC 327,
24 (2021) 16 SCC 179,
CRL.A. NOS.429-430 OF 2020 Page 58 of 157
attributable to such causes is not a badge of
falsehood. This much is settled by the consistent line
of authority in State of Punjab v. Gurmit Singh25,
and Tulshidas Kanolkar v. State of Goa,26.
69. When the conduct of the mother of the victim is
examined in this light, and against the reality of her
situation as it emerges from the record, it ceases to
appear unnatural at all, and appears instead as the
entirely intelligible conduct of a woman held in a
condition of entrapment. She was a widow of the first
marriage, without means of her own, who had entered
upon a second marriage with the appellant and had
brought her child into his house. She was illiterate.
She was economically wholly dependent upon the
appellant. She was the fourth wife of a man whose
three previous wives had left him on account of his
violence, and she was, on the evidence, subjected to
the same violence, being beaten when she attempted
to intervene to protect her child. She was threatened,
in terms, that if she spoke she and the child would
both be buried and that it would be given out that she
had run away with another man. Her movements
were controlled, her contacts were regulated, and her
access to a telephone was confined to the numbers
her husband permitted. A woman so placed is not a
free agent who may be expected to walk into a police
25 (1996) 2 SCC 384,
26 (2003) 8 SCC 590
CRL.A. NOS.429-430 OF 2020 Page 59 of 157
station at the first opportunity. She is, in a real and
not a merely rhetorical sense, a captive.
70. The behavioural sciences have long recognised the
phenomenon of which the conduct of the mother of
the victim is an instance. Dr. Lenore E. Walker27, an
American clinical and forensic psychologist and a
pioneering authority on the psychology of abused
women, in her work The Battered Woman published
in the year 1979, described the cyclical pattern of
violence that characterises abusive intimate
relationships, in which phases of tension and acute
violence alternate with phases of contrition, and
explained, by reference to the concept of learned
helplessness, how the repetition of such cycles may
erode the capacity of the victim to extricate herself, so
that her continued presence in the abusive home is
not to be mistaken for acquiescence or for the
absence of abuse. Dr. Judith Lewis Herman28, an
American psychiatrist associated with the Harvard
Medical School, in her work Trauma and Recovery
published in the year 1992, situated domestic abuse
alongside other conditions of prolonged captivity and
27 For Walker's cycle of violence and learned helplessness, refer to Lenore E. Walker,
The Battered Woman (New York, Harper and Row, 1979). A convenient scholarly
synopsis confirming the three-phase cycle and the learned-helplessness construct,
drawing on Walker (1979) and Seligman (1975), is available at
https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1023&context=edp and
https://onlinelibrary.wiley.com/doi/abs/10.1002/9781118929803.ewac0083.
28 For Herman on captivity, coercive control, secrecy and the perpetrator attacking the
victim's credibility, refer to Judith Lewis Herman, Trauma and Recovery: The Aftermath
of Violence from Domestic Abuse to Political Terror (New York, Basic Books, 1992).
CRL.A. NOS.429-430 OF 2020 Page 60 of 157
coercive control, and observed how the perpetrator of
such abuse maintains his dominance through
isolation, secrecy and terror, and how, in order to
escape accountability, he promotes the forgetting of
his acts, so that, in her words, "If secrecy fails, the
perpetrator attacks the credibility of his victim." We are
conscious that the framework of learned helplessness
has itself been the subject of scholarly qualification,
and we do not adopt it as a diagnosis or apply it as a
label to the mother of the victim, whose conduct in
fact reveals not passivity but a persistent and
courageous resistance, to which we shall come. We
refer to this body of learning for the limited but
important purpose of dispelling the lay assumption,
upon which the appellant's submission rests, that a
woman genuinely subjected to abuse would
necessarily and promptly report it, and of affirming
that silence, endurance and continued cohabitation
are, tragically, among the most common features of
the experience of abused women, and are not indicia
of fabrication.
71. That this is not a matter of theory alone, but of
demonstrable social reality in the very society to
which the mother of the victim belongs, is borne out
by the empirical record. According to the National
Family Health Survey (NFHS-5) conducted in the
CRL.A. NOS.429-430 OF 2020 Page 61 of 157
years 2019 to 202129, approximately 29.3 per cent of
ever-married women in India in the age group of 18
to 49 years reported having experienced physical or
sexual violence at the hands of their spouse, and, of
the women who had experienced such violence, on
the order of three-fourths never sought help from any
quarter and never so much as disclosed the violence
to any person. These figures, drawn from the largest
such survey in the country, establish that the silence
of the abused woman is not the exception but the
norm, and that the failure to report is the
overwhelmingly common response and not an
aberration calling for suspicion. The conduct of the
mother of the victim, in enduring in silence what was
done within the home, is therefore not the singular
conduct of a false witness but the tragically
representative conduct of the abused woman, and it
would be a perverse use of these realities to convert
the very silence that the conditions of her captivity
imposed upon her into an instrument for the
acquittal of the man who imposed them.
72. There is a further and a compelling answer to the
submission, which is that the conduct of the mother
of the victim, examined in its entirety, was not in
29 For the prevalence figure of 29.3 per cent, refer to National Family Health Survey
(NFHS-5), 2019 to 2021, International Institute for Population Sciences and Union
Ministry of Health and Family Welfare, Government of India. A peer-reviewed source
reporting this exact figure from NFHS-5 is at
https://www.nature.com/articles/s41598-025-05474-3.
CRL.A. NOS.429-430 OF 2020 Page 62 of 157
truth the conduct of one who acquiesced, but the
conduct of one who resisted to the extent that her
circumstances allowed. She intervened to protect the
child and was beaten for it. She telephoned the
appellant when the condition of the child worsened,
as the call records confirm. She pressed the
appellant, more than once, to take the child to
hospital. When the appellant proposed that the child
be buried at Kushalgarh, where the death might have
passed unremarked, it was she who insisted that the
body be taken to Javra to her own family, and it was
there, upon reaching her family, that she at last
disclosed what the appellant had done. Her conduct,
taken as a whole, is not that of a confederate but that
of a woman doing what little she safely could against
a man who held every advantage of strength, of
means and of liberty over her. To read her enforced
silence in the home as complicity, while ignoring her
resistance at every point where resistance was
possible, would be to misread the record.
73. The specific reliance placed by the appellant upon two
circumstances may be separately addressed. The first
is that she did not flee or go to the police on the day
the appellant went to the Deviya Sthan and the house
was left unlocked. But an unlocked door is not an
open road to freedom for a woman without means,
without money for the journey, without a place of
refuge secure from a husband who had threatened to
CRL.A. NOS.429-430 OF 2020 Page 63 of 157
bury her, and burdened with a gravely injured child
whom she could not carry to safety. The absence of a
lock upon the door did not remove the manifold other
bonds that held her, and her failure to seize that
occasion is no mark of falsehood. The second is that
she washed the body of the child before it was taken
for burial. This was the customary preparation of the
body for burial, performed by the family in
accordance with its rites, and not the calculated
destruction of evidence, and it is to be remembered
that notwithstanding the washing of the body the
injury to the genitalia of the child survived to be
discovered at the post-mortem examination. Neither
circumstance detracts from the reliability of her
account.
74. At this juncture, we want to make an important
observation. It is a recurring feature of cases of this
nature that the very conditions of secrecy, isolation
and terror by which the abuser secures his
dominance and the silence of his victim are
afterwards pressed into service, in the courtroom, as
arguments to discredit that victim when at last she
speaks, so that, as the scholarship we have referred
to observes, the perpetrator who cannot maintain
secrecy turns instead to attacking the credibility of
his victim. The perpetrator who has procured silence
through fear then seeks to convert that silence, and
the imperfections of a disclosure made late and under
CRL.A. NOS.429-430 OF 2020 Page 64 of 157
duress, into proof that the abuse never occurred. A
court alive to the realities of abuse within the home
must be vigilant not to lend itself to this stratagem,
and must ensure that the disabilities which the
abuser imposed upon his victim are not permitted to
enure to his benefit. For the reasons we have given,
we hold that the conduct of the mother of the victim,
far from impairing her credibility, is consistent with
the truth of her account, and that the submission
founded upon it must be rejected.
E.4 The submission founded upon the call detail
record
75. The fourth attack upon the credibility of the mother
of the victim is founded upon the call detail record of
the mobile telephone that she used. It is urged that
this record demolishes her case of isolation and fear,
because it shows that during the very period in which
she claimed to have been confined, intimidated and
cut off from the world, she was in fact making and
receiving several calls of substantial duration to and
from a number of telephone numbers. The
submission, as it was developed, is that a woman
engaged in such telephonic communication cannot
have been the isolated captive that the prosecution
portrayed.
CRL.A. NOS.429-430 OF 2020 Page 65 of 157
76. We are unable to accept the submission, and it
appears to us to suffer from more than one infirmity.
In the first place, the call detail record, so far from
undermining the account of the mother of the victim,
corroborates it upon the single particular that is of
real significance to the events in issue. As already
noted in Section D, the call detail record corroborates
rather than undermines the account of the mother of
the victim. The very document upon which the
appellant relies thus confirms the truthfulness of the
mother upon a matter that she could neither have
anticipated nor contrived, and it is a curious use of a
document to found upon it an attack on the credit of
a witness whom it corroborates.
77. In the second place, the remaining entries in the call
detail record, upon which the appellant lays stress,
do not carry the significance attributed to them. The
record establishes no more than that calls were made
to and received from certain numbers. It does not
establish the identity of the persons at those
numbers, nor the content of the conversations, nor
that any of those conversations was a free and
unconstrained communication of the kind that the
submission assumes. Under Section 101 of the
Evidence Act, the burden of proving a fact lies upon
the party who asserts it and who would fail if no
evidence were given on either side, and the burden of
establishing that these calls were of a character
CRL.A. NOS.429-430 OF 2020 Page 66 of 157
inconsistent with the condition of control that the
mother described therefore lay upon the appellant
who asserted that inconsistency. It was for the
appellant, if the point was to be made good, to identify
the subscribers of those numbers and to demonstrate
that the calls were irreconcilable with her account. No
such foundation was laid. Nor was it put to the
mother in cross-examination that any of those
numbers belonged to a source from whom she could
freely have sought rescue, and it is a settled rule of
fair procedure that a party who intends to impeach
the account of a witness upon a particular matter
must put that matter to the witness so that she may
offer her explanation, failing which he may not
afterwards build upon it. The numbers were left
unidentified and the suggestion was never made. The
mother, indeed, herself volunteered in her evidence
that calls used to come to her telephone from other
numbers and that she would speak upon them, which
is a candid acknowledgment and not a concealment.
In the absence of any proof of the identity of the
subscribers or of the nature of the calls, the bare fact
that calls were made and received proves nothing
beyond the unremarkable circumstance that the
instrument was in use.
78. In the third place, the submission proceeds upon a
false equation between the possession of a telephone
and the enjoyment of freedom. We have already had
CRL.A. NOS.429-430 OF 2020 Page 67 of 157
occasion to notice that the mother was an illiterate
woman who did not know how to dial a number, who
could call only those numbers that the appellant had
himself saved in the instrument, and whose
telephone number had not been given by the
appellant to her own parents. A woman so
circumstanced is not liberated by the mere presence
of a telephone in her hand. That the instrument could
make and receive calls establishes the capabilities of
the instrument, and not the liberty of the person
holding it. Freedom from the control of an abuser is
not to be measured by the possession of a device, and
a woman may hold a telephone in a house from which
she is not free to walk out. The call detail record
therefore does not bear upon the condition of control
and dependence that the mother described, which
subsisted notwithstanding her access to a telephone
upon the terms her husband permitted.
79. There is, finally, a want of consistency in the position
of the appellant with respect to this very record. The
appellant assailed the reliability and the proof of the
call detail record when it was relied upon by the
prosecution, contending that its contents had not
been established in the manner required by law, and
yet the appellant embraced the same record, and
invited this Court to act upon its entries, when it was
thought to assist the defence. A document cannot be
at once too unreliable to be used against the appellant
CRL.A. NOS.429-430 OF 2020 Page 68 of 157
and sufficiently reliable to be used in his favour. This
inconsistency of approach further diminishes the
weight of the submission.
80. For these reasons, we hold that the call detail record
does not impair the account of the mother of the
victim. Upon the particular that matters, it
corroborates her. Upon the entries relied upon by the
appellant, it establishes nothing beyond the use of the
instrument, the identity and character of the other
calls having been left wholly unproved. And the
submission mistakes the possession of a telephone
for the possession of freedom, which, in the situation
of the mother of the victim, it was not.
E.5 The alleged contradiction with PW-4 and the
theory of false implication
81. The fifth and final attack upon the credibility of the
mother of the victim is that her evidence stands
contradicted by that of PW-4, the sister-in-law, upon
the question whether she had confided in anyone
regarding the treatment of the child, and that she was
in truth made to depose falsely against the appellant
at the instance of PW-4, with whom the appellant
claims to have had a pre-existing animosity. The two
limbs of this submission, though presented together,
are distinct, and we deal with them in turn.
CRL.A. NOS.429-430 OF 2020 Page 69 of 157
82. As to the alleged contradiction, the position is that the
mother of the victim deposed that the appellant did
not permit her to speak of the affairs of the household
to others, whereas PW-4 deposed that the mother had
confided in her regarding the ill-treatment of the
child. We are unable to regard this as a contradiction
of a character that touches the reliability of the
account of the mother upon the core events. Whether
or not the mother, at some point and to a single
member of her own family, disclosed something of
what was occurring in the household, is a matter that
lies at the periphery of the case. It has no bearing
upon the questions that lie at its centre, namely
whether the appellant sexually assaulted the child
and whether he throttled her to death, upon which
the evidence of the mother is corroborated by the
medical evidence, the telephone record and the other
material we have discussed. A discrepancy between
two witnesses upon a collateral matter of this kind,
one of whom speaks of a confidence and the other of
a general regime of secrecy, is not a discrepancy that
erodes the substratum of the prosecution case, and it
is precisely the kind of minor variance that this Court
has repeatedly held ought not to be permitted to
defeat an otherwise reliable case. If anything, the
evidence of PW-4, that the mother had spoken to her
of the ill-treatment of the child, tends to corroborate
rather than to contradict the case that the child was
CRL.A. NOS.429-430 OF 2020 Page 70 of 157
being ill-treated in the household, and the appellant
cannot derive assistance from it upon the merits.
83. The second limb, namely the theory that the mother
was made to depose falsely at the instance of PW-4,
requires that the submission be examined for what it
truly asks this Court to accept, for a theory of false
implication of this order cannot be tested in the
abstract but only by a consideration of what it entails.
The theory requires this Court to accept that a
mother, whose child of about six years had died a
violent death by throttling, chose to shield the true
author of that death, whoever he might be, and
instead to fasten a false charge of rape and murder
upon her own husband. It requires this Court to
accept that she was willing, in order to serve the
supposed animosity of her sister-in-law against the
appellant, to invent the sexual violation of her own
dead child, to submit that invented account to the
ordeal of investigation and of trial, to repeat it upon
oath, and to adhere to it through two crossexaminations
separated by seven years, and in doing
so to destroy her own marriage, to forfeit her shelter
and her security, and to consign the memory of her
child to a fabricated history of rape. A hypothesis of
this nature does not commend itself to reason. It is
not merely improbable, it is very nearly incredible,
and it becomes the more incredible when it is recalled
that the accusation of the mother is not the
CRL.A. NOS.429-430 OF 2020 Page 71 of 157
unsupported word of a solitary and interested
witness, but an accusation corroborated by the
objective finding of a fresh genital injury upon the
body of the child at the post-mortem examination and
by the medical opinion that the death was homicidal
and was caused by throttling. To accept the theory of
false implication, this Court would have to believe
that these objective injuries upon the body of the
child either invented themselves or were procured by
the mother to lend colour to her falsehood, a
proposition that has only to be stated to be rejected.
84. It is well to remember, in this connection, the settled
distinction between what may possibly be true and
what is proved to be true, and the corresponding
caution that a criminal court does not act upon
fanciful or conjectural possibilities conjured up in aid
of the defence. This Court, in Shivaji Sahabrao
Bobade v. State of Maharashtra30, observed that
the dangerous doctrine that a mere possibility in
favour of the accused must lead to acquittal is to be
guarded against, and that a court must not allow
suspicion to take the place of proof, but equally must
not allow a reasonable and probable conclusion
drawn from proved facts to be displaced by a remote
or fanciful hypothesis. The theory of false implication
advanced in the present case is a hypothesis of
30 (1973) 2 SCC 793
CRL.A. NOS.429-430 OF 2020 Page 72 of 157
precisely that fanciful character. It is unsupported by
any material on the record beyond the ipse dixit of the
appellant in his statement under Section 313 of the
CrPC, it is contradicted by the objective medical
evidence, and it attributes to a bereaved mother a
course of conduct so contrary to nature and to selfinterest
as to lie beyond the bounds of rational
acceptance. We reject it.
85. For these reasons, the alleged contradiction with the
evidence of PW-4 is found to be upon a collateral
matter that does not impair the account of the mother
of the victim upon the core events, and the theory of
false implication at the instance of PW-4 is found to
be an improbable and unsubstantiated conjecture
that is belied by the objective evidence on the record.
This disposes of the last of the attacks mounted upon
the credibility of the mother of the victim.
86. Having considered each of the five attacks upon the
credibility of the mother of the victim, namely the
alleged material omissions, the alleged internal
contradictions, the alleged unnatural conduct, the
call detail record, and the alleged contradiction with
PW-4 and the theory of false implication, and having
found each of them to be without substance, we hold
that the account of the mother of the victim upon the
core events, which we have found to be reliable and
corroborated, stands unimpaired by the challenges
directed against it. We accordingly accept her
CRL.A. NOS.429-430 OF 2020 Page 73 of 157
evidence that the appellant subjected the victim to
sexual assault and thereafter throttled her to death,
and we proceed upon that footing in the sections that
follow.
SECTION F — THE VICTIM’S DYING DECLARATION
87. Thus far we have found that the account of the
mother of the victim, that the appellant sexually
assaulted the child and thereafter throttled her to
death, is reliable and corroborated, and that it
withstands each of the attacks directed against it. The
proof of the sexual assault, however, does not rest
upon the account of the mother alone, nor even upon
that account taken together with the medical
evidence. There is upon the record a further and a
distinct piece of evidence upon this question, of a
solemn and a peculiar character, and it is the voice of
the victim herself. Upon the night of 21.04.2018,
when the mother found the child in the condition we
have described, the child made a disclosure to her
mother of what the appellant had done to her. That
disclosure was deposed to by the mother in her
examination-in-chief, and it is necessary now to
consider its legal character and its effect.
88. The disclosure of the child, as deposed to by the
mother, was to the following effect, recorded in the
deposition of 16.07.2018.
CRL.A. NOS.429-430 OF 2020 Page 74 of 157
"My girl also told me that the accused had
removed her legging and he had taken off
her underwear and was also stripped
himself naked and slept on her and acted
wrong with her. I understood that the
accused raped my baby girl."
The question is whether this statement of the
child, who did not survive to depose and whose
voice can therefore reach the Court only through
the mouth of her mother, is admissible in
evidence, and if so, with what effect.
89. The statement is, in our view, admissible under
Section 32(1) of the Evidence Act. That provision
constitutes an exception to the rule against hearsay,
and it renders relevant the statement of a person who
is dead, in the circumstances there set out. The
provision, so far as is material, is in these terms.
"32. Cases in which statement of relevant
fact by person who is dead or cannot be
found, etc., is relevant.—Statements,
written or verbal, of relevant facts made by
a person who is dead ... are themselves
relevant facts in the following cases:—
(1) When it relates to cause of death.—
When the statement is made by a person
as to the cause of his death, or as to any of
the circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person's death comes into
question. Such statements are relevant
whether the person who made them was
or was not, at the time when they were
made, under expectation of death, and
CRL.A. NOS.429-430 OF 2020 Page 75 of 157
whatever may be the nature of the
proceeding in which the cause of his death
comes into question."
90. Two features of the provision, as it has been
expounded by this Court, require to be noticed, for
upon them the admissibility of the child's disclosure
depends. The first is that the statement need not have
been made under an expectation of death. The
concluding words of the clause make this explicit,
and a statement is admissible under Section 32(1) of
the Evidence Act, whether or not the maker was, at
the time of making it, in expectation of death. The
apprehension that a child of six could not have
appreciated the imminence of death, which might
have been fatal to the admissibility of the statement
as a dying declaration in the traditional and narrower
sense, is therefore immaterial under the law as it
stands in this country. The second feature is that the
statement is admissible not only when it relates to the
cause of death directly, but also when it relates to any
of the circumstances of the transaction which
resulted in the death. It is upon this second and wider
limb that the disclosure of the child is admissible, and
it is necessary to explain why the sexual assault of
21.04.2018 and the death by throttling of 23.04.2018
constitute one transaction within the meaning of the
provision.
CRL.A. NOS.429-430 OF 2020 Page 76 of 157
91. The expression "circumstances of the transaction
which resulted in his death" has been the subject of
authoritative exposition. In the classical judgement of
Pakala Narayana Swami v. King-Emperor31, it
was explained that the circumstances of the
transaction which resulted in the death are not
confined to the actual occurrence which caused the
death, but extend to the circumstances that have
some proximate relation to the actual occurrence and
form part of the transaction of which the death is the
culmination. This Court, in Sharad Birdhichand
Sarda v. State of Maharashtra32, considered the
ambit of Section 32(1) of the Evidence Act at length
and held that the section is not to be construed
narrowly, that the expression "circumstances of the
transaction" is wider than the cause of death, and
that where the statement relates to circumstances
which have a proximate and not a remote or
unconnected bearing upon the death, and which form
part of the same transaction, it is admissible. It was
further recognised that the proximity to be insisted
upon is a proximity of relation to the transaction and
not necessarily an immediate proximity of time, and
that the length of the interval between the statement
and the death is a matter that goes to weight and to
the question whether the statement truly forms part
31 1939 SCC OnLine PC 1
32 (1984) 4 SCC 116,
CRL.A. NOS.429-430 OF 2020 Page 77 of 157
of the transaction, and not to an inflexible bar of
admissibility. This Court reaffirmed, in Rattan Singh
v. State of Himachal Pradesh33, that the
circumstances of the transaction may precede the
actual killing and may be separated from it by an
interval, provided that they are connected with it as
parts of one continuous transaction.
92. Applying these principles, we are satisfied that the
disclosure of the child forms part of the very sequence
of events which resulted in her death. This is not a
case in which the sexual assault and the death were
unconnected episodes separated by an interval of
chance. The record discloses a single, continuous and
escalating course of conduct on the part of the
appellant towards the child. The child was sexually
assaulted on the night of 21.04.2018. Her condition
thereafter deteriorated. She was assaulted again on
the morning of 22.04.2018. Her deterioration
continued, and she was denied medical assistance.
Upon his return on 23.04.2018, the first concern of
the appellant was to ascertain whether the child had
disclosed anything to her mother, and upon the child
screaming he throttled her. The sexual assault and
the throttling were not two transactions but
successive stages of one transaction, bound together
by the identity of the perpetrator, by the continuity of
33 (1997) 4 SCC 161,
CRL.A. NOS.429-430 OF 2020 Page 78 of 157
the child's suffering, and, most tellingly, by the motive
that the conduct of the appellant itself reveals, for his
anxiety to know whether the child had spoken, and
his act of silencing her when she screamed, disclose
that the killing was the culmination of, and was
designed to suppress the disclosure of, the very
sexual assault to which the child's statement related.
The disclosure of the child as to the sexual assault is
therefore a statement as to a circumstance of the
transaction which resulted in her death, and it is
admissible under Section 32(1) of the Evidence Act.
The admissibility of the statement does not depend
upon an anterior acceptance of its truth. It arises
from the independent circumstances connecting the
sexual assault, the subsequent deterioration of the
victim, the concern displayed by the appellant as to
whether she had spoken, and the killing that
followed, which together establish the requisite
relationship between the statement and the
transaction resulting in her death.
93. We are further of the view that the disclosure is
admissible upon an independent footing, as forming
part of the res gestae under Section 6 of the Evidence
Act. The disclosure was made by the child to her
mother in the immediate aftermath of the assault,
upon the mother gaining access to the child, while the
child was still in the grip of the pain and distress of
what had been done to her, and it was so proximate
CRL.A. NOS.429-430 OF 2020 Page 79 of 157
to the event, and so spontaneous, as to be a part of
the event itself and to exclude any possibility of
concoction or design. A statement so made is
admissible under Section 6 of the Evidence Act as a
fact forming part of the same transaction, and it lends
further support to the admissibility of the disclosure
that we have already found under Section 32(1) of the
Evidence Act.
94. As to the weight of the disclosure, we are conscious
that a statement admitted under Section 32(1) of the
Evidence Act is not tested by cross-examination of its
maker, and that the Court must for that reason
satisfy itself of its reliability before acting upon it.
Applying that caution, we find the disclosure of the
child to be reliable. It was made to her own mother,
the person to whom a child in pain would naturally
turn. It was made spontaneously and at the earliest
opportunity. It contains particulars, as to the removal
of her clothing, the disrobing of the appellant and the
nature of what was done to her, which are consistent
with sexual assault and which a child of that age
could not have invented. And, decisively, it is
corroborated by the objective medical evidence, for
the fresh tear at the fourchette with oozing of blood,
found upon the body of the child at the post-mortem
examination, is the physical confirmation of the very
act that the child described to her mother. The
CRL.A. NOS.429-430 OF 2020 Page 80 of 157
account of the child and the findings of the autopsy
speak with one voice.
95. The result is that the sexual assault upon the victim
is established not by one route but by two
independent evidentiary routes, each corroborated by
the medical evidence. It is established by the direct
ocular account of the mother of the victim, whose
reliability we have upheld. And it is established,
independently, by the disclosure of the victim herself,
admissible under Section 32(1) and under Section 6
of the Evidence Act, and corroborated by the injury
found at the post-mortem examination. The victim,
silenced in life, is not silenced in law, and her voice,
reaching the Court through her mother and
confirmed by the marks upon her body, bears witness
to what was done to her.
SECTION G - THE CORROBORATIVE EVIDENCE
96. We have found the core account of the mother of the
victim to be reliable, and we have found the sexual
assault to be established independently by the
disclosure of the victim. We now turn to the further
evidence upon the record that corroborates the case
of the prosecution, comprising the evidence of the
neighbours and the sister-in-law upon the
atmosphere of the household, the extra-judicial
confession of the appellant, and the conduct of the
CRL.A. NOS.429-430 OF 2020 Page 81 of 157
appellant. Before doing so, we record one matter in
which we are unable to accept a part of the
prosecution case, for candour in what is rejected
lends assurance to what is accepted.
97. That matter is the allegation that the appellant burnt
the leg of the child upon a gas flame. The mother
deposed to this allegation, and PW-2 and PW-5 spoke
of having seen the child limping. We have, however,
no hesitation in observing that this particular
allegation does not find corroboration in the medical
record. Neither the inquest report nor the postmortem
report records any burn injury upon the body
or the leg of the child. In the absence of any such
objective confirmation, and mindful that the burn is
not an ingredient of any of the offences with which
the appellant is charged, we think it right to keep this
allegation entirely out of consideration, and we do not
rely upon it for any purpose. The setting aside of this
allegation, which the prosecution does not need, does
not weaken the case in the least, for it rests upon
evidence wholly distinct from the burn, and the
excision of an unproved detail from the periphery
serves only to confirm that what we do accept, we
accept after scrutiny and not indiscriminately.
98. Turning to the evidence that we do accept in
corroboration, PW-2 and PW-5, who are residents of
the locality, and PW-4, the sister-in-law, spoke about
the atmosphere of the household and the antecedent
CRL.A. NOS.429-430 OF 2020 Page 82 of 157
ill-treatment of the child. It was urged that their
evidence is worthless because their statements under
Section 161 of the CrPC came to be recorded as late
as 19.05.2018, some twenty-six days after the
incident, and that this delay stamps their evidence as
an afterthought. We are unable to accept that the
delay in the recording of their statements is, in the
circumstances of this case, a ground for discarding
their evidence. It is settled that a delay on the part of
the Investigating Officer in recording the statement of
a witness does not, by itself, render the evidence of
the witness unreliable, and that where the delay is
attributable to the investigating agency and the
witness is not shown to have any reason to depose
falsely, the delay is not fatal. This Court has held, in
State of U.P. v. Satish34, that delay in the
examination of a witness by the Investigating Officer
is not, in the absence of any indication of the witness
having been won over, a ground to reject the
testimony, and that the Investigating Officer must be
questioned upon the reason for the delay before an
adverse inference can be drawn from it. In the present
case, the delay was not put to the Investigating Officer
as a matter with which he was confronted for
explanation, and the witnesses were residents of a
village in which, on the evidence, the appellant was a
34 2005) 3 SCC 114
CRL.A. NOS.429-430 OF 2020 Page 83 of 157
man who was feared. The reticence of such witnesses
to come forward, and the delay of the investigating
agency in reaching them, are readily understandable
and do not impair their evidence, which, so far as it
speaks to the ill-treatment of the child and the
atmosphere of fear surrounding the appellant,
corroborates the account of the mother.
99. We come next to the extra-judicial confession of the
appellant. The mother of the victim deposed that,
upon the body of the child being taken to Javra to her
family, the appellant stated to the members of her
family that he had throttled the child to death. In her
deposition of 16.07.2018 she described this in the
following terms.
"My relatives asked accused how [victim’s
name] died so he told them that he had
strangled [victim’s name] to death."
An extra-judicial confession is admissible in
evidence as an admission of guilt, and although
it is a species of evidence that the Court
approaches with caution, requiring that it be
voluntary and truthful and that it inspire
confidence, a voluntary and credible extrajudicial
confession may form the basis of, or may
lend corroboration to, a conviction. This Court,
in Sahadevan v. State of Tamil Nadu35, set
35 (2012) 6 SCC 403
CRL.A. NOS.429-430 OF 2020 Page 84 of 157
out the principles governing the reception of
such a confession, cautioning that it is a weak
piece of evidence that must be received with care
and that must be corroborated, while
recognising that a confession which is
voluntary, which is made in circumstances free
from suspicion, and which is corroborated by
the other evidence, may be acted upon. Tested
by these principles, the confession spoken to by
the mother carries conviction. It was made not
to a person in authority or in circumstances of
coercion, but to the family of the deceased child,
at the moment when they demanded to know
how she had died. It was, in substance, an
admission wrung from the appellant by the
direct question of the bereaved family, and it is
difficult to conceive of any inducement or design
that could have prompted a false confession of
the killing of the child in such a setting. It is,
moreover, corroborated at every point by the
evidence we have already accepted, namely the
ocular account of the mother, the finger
impressions upon the throat of the child, and
the medical opinion that the death was
homicidal and was caused by throttling. We are
satisfied that the extra-judicial confession was
made and that it may properly be relied upon in
corroboration of the guilt of the appellant.
CRL.A. NOS.429-430 OF 2020 Page 85 of 157
100. Finally, we come to the conduct of the appellant,
which the law treats as a relevant fact. Section 8 of
the Evidence Act renders relevant the conduct of a
person against whom a proceeding is taken, where
such conduct influences or is influenced by any fact
in issue or relevant fact. The conduct of the appellant,
examined across the whole of the sequence, is the
conduct of a man conscious of his guilt. Upon his
return home on 23.04.2018, his first concern was not
for the gravely ailing child but was to ascertain
whether the child had disclosed anything to her
mother, an enquiry intelligible only in a man
apprehensive that his crime had been revealed. When
pressed to take the child to hospital, he refused, and,
as the mother deposed, he asserted that the child was
pretending and would not die, thereby ensuring that
the child received no medical attention that might
have exposed her injuries. When at length he fetched
a practitioner, it was one who was permitted only to
look at the child from the threshold and who did not
touch her. Upon being discovered with his hands at
the throat of the child, he was seen to tremble and to
perspire and to protest, unprompted, that he had not
killed her. And when the child was dead, he proposed
that she be buried at once at Kushalgarh, where the
death might have escaped all scrutiny, a course
frustrated only by the insistence of the mother that
the body be taken to her family. Each of these items
CRL.A. NOS.429-430 OF 2020 Page 86 of 157
of conduct, taken singly, might admit of more than
one explanation. Taken together, and viewed as a
connected course of conduct, they form a pattern that
is consistent only with the consciousness of guilt, and
that is wholly inconsistent with the conduct of an
innocent man confronted with the sudden illness and
death of a child in his home. This Court, in Anant
Chintaman Lagu v. State of Bombay36, recognised
that the conduct of an accused, before and after the
offence, is a relevant circumstance that may, in a fit
case, form a link in the chain of evidence pointing to
his guilt. The conduct of the appellant in the present
case is such a circumstance, and it points unerringly
to his guilt.
101. The evidence considered in this section, namely
the corroboration by the neighbours and the sisterin-
law of the atmosphere of ill-treatment, the extrajudicial
confession made to the family of the
deceased, and the incriminating conduct of the
appellant, corroborates and reinforces at every point
the account of the mother of the victim and the
disclosure of the victim, which we have already
accepted. We now turn to the scientific evidence.
SECTION H- THE SCIENTIFIC EVIDENCE
102. We now come to the scientific evidence,
comprising the report of the DNA analysis, which the
36 AIR 1960 SC 500
CRL.A. NOS.429-430 OF 2020 Page 87 of 157
appellant assailed upon three grounds, namely that
the report was inadmissible because its author was
not examined, that the chain of custody of the
samples was not established, and that the findings of
the report were in any event innocuous. Before
addressing these grounds, we consider it necessary to
state at the outset the footing upon which we
approach this evidence, for it governs the whole of
what follows in this section.
103. The footing is this. We have already held, upon
the ocular account of the mother of the victim, upon
the disclosure of the victim admissible under Section
32(1) of the Evidence Act, upon the medical evidence,
upon the extra-judicial confession, and upon the
conduct of the appellant, that the prosecution has
established that the appellant sexually assaulted the
victim and throttled her to death. That conclusion
does not depend upon the DNA evidence. The DNA
evidence is, in our treatment of the case,
corroborative and confirmatory, and not
foundational. We say this at the threshold and with
deliberation, because it means that even if the whole
of the DNA report were to be excluded from
consideration, the conviction would remain
unshaken upon the evidence we have already
accepted. The submissions of the appellant upon the
scientific evidence, however forcefully urged, are
therefore submissions directed at a limb of the case
CRL.A. NOS.429-430 OF 2020 Page 88 of 157
that is reinforcing and not load-bearing, and they
cannot, whatever their merit, disturb the conclusion
we have reached upon the substantive evidence. We
nonetheless address them, for completeness.
104. Upon the question of admissibility, the
submission was that the expert who authored the
report of the DNA analysis was not examined as a
witness, and that the contents of the report could not
therefore be read in evidence. The submission
overlooks the effect of Section 293 of the CrPC. That
provision permits the report of certain scientific
experts of the Government, upon whom it confers a
defined status, to be used in evidence in any inquiry,
trial or other proceeding without the author being
called as a witness. The provision, so far as is
material, is in these terms.
"293. Reports of certain Government
scientific experts.—(1) Any document
purporting to be a report under the hand of
a Government scientific expert to whom
this section applies, upon any matter or
thing duly submitted to him for
examination or analysis and report in the
course of any proceeding under this Code,
may be used as evidence in any inquiry,
trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon
and examine any such expert as to the
subject-matter of his report.
...
(4) This section applies to the following
Government scientific experts, namely:—
CRL.A. NOS.429-430 OF 2020 Page 89 of 157
(a) any Chemical Examiner or Assistant
Chemical Examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute,
Bombay;
(e) the Director, Deputy Director or
Assistant Director of a Central Forensic
Science Laboratory or a State Forensic
Science Laboratory;
(f) the Serologist to the Government;
(g) any other Government scientific expert
specified, by notification, by the Central
Government for this purpose."
105. The report of the DNA analysis in the present
case was authored by an officer of the Forensic
Science Laboratory of the Government, being an
officer within the description contained in subsection
(4) of Section 293 of the CrPC. His report was
accordingly one that the Court was entitled to use in
evidence under sub-section (1) without his being
examined, and the objection to its admissibility on the
sole ground that its author was not called is, in law,
unsustainable. It was open to the appellant, had he
genuinely wished to test the report, to invoke subsection
(2) of Section 293 and to request the Court to
summon and examine the expert as to the subjectmatter
of his report. The appellant made no such
request at the trial. A party who forbears from
exercising the statutory right to summon the expert
cannot afterwards be heard to complain that the
report was read without the expert being examined.
CRL.A. NOS.429-430 OF 2020 Page 90 of 157
The authorities relied upon by the appellant, in which
the contents of a scientific report were held not to
have been proved, are distinguishable, for they were
concerned with situations in which the report did not
carry the statutory character that attracts Section
293, or in which the very reliability of the technique
or of the underlying data was genuinely and
specifically put in issue at the trial, which was not the
case here.
106. Upon the question of the chain of custody, the
submission was that the movement of the samples
from the point of their seizure to the point of their
analysis was not established, and that the possibility
of tampering could not be excluded. We have
examined the record upon this aspect. The articles
seized in the course of the investigation were entered
in the register maintained at the malkhana, and they
were forwarded to the laboratory and were received
there in a sealed condition, as the receipt of the
laboratory establishes. The submission that the
seizure memoranda did not in terms recite the sealing
of the articles is a submission that goes, at the
highest, to the weight of the scientific evidence and
not to its admissibility. Where the sealing of the
articles and their deposit at the laboratory in a sealed
condition are otherwise borne out by the record, a
formal deficiency in the recital of the seizure
memoranda does not, by itself, establish that the
CRL.A. NOS.429-430 OF 2020 Page 91 of 157
samples were tampered with, and no material was
placed before the courts below or before us to suggest
that any tampering in fact occurred.
107. Upon the question of the findings, the
submission was that the results of the DNA analysis
were innocuous, in that no male DNA was detected in
the vaginal smear of the victim, and that the matches
which were found were consistent with the appellant
and the victim having resided together in the same
household. We are unable to accept that the findings
are innocuous. The absence of male DNA in the
vaginal smear is not, in the circumstances of this
case, a circumstance that exonerates the appellant,
for the body of the child was washed before it was
taken for the post-mortem examination, and a lapse
of time had intervened between the assault and the
examination, and the absence of a detectable trace in
such circumstances is as consistent with the washing
away and the degradation of the material as with its
original absence. The finding of the fresh tear at the
fourchette, which we have already noticed,
establishes the fact of the sexual assault
independently of the DNA analysis, and the absence
of a DNA trace in the smear cannot displace that
physical finding. As to the matches that were found,
we do not rest any conclusion upon their innocuous
or their incriminating character, since we treat the
scientific evidence as no more than corroborative, and
CRL.A. NOS.429-430 OF 2020 Page 92 of 157
it is sufficient to observe that the findings, so far as
they go, are consistent with the guilt of the appellant
and are in no manner exculpatory.
108. For these reasons, we hold that the report of the
DNA analysis was admissible under Section 293 of
the CrPC without the examination of its author, that
the objection founded upon the chain of custody goes
to weight and not to admissibility and is not made
good upon the record, and that the findings are not
exculpatory. We hold, above all and as we have held
from the outset of this section, that the conviction
does not rest upon the scientific evidence, which is
corroborative only, and that the entire body of
submissions directed against the DNA report, even if
it were accepted in its entirety, would leave the
conviction, founded as it is upon the ocular account,
the disclosure of the victim, the medical evidence, the
extra-judicial confession and the conduct of the
appellant, wholly unaffected.
SECTION I- THE DEFENCE CASE
109. We now turn to the defence set up by the
appellant, which is threefold. The first limb is the plea
of alibi, that the appellant was absent from the village
on the relevant dates. The second is the counternarrative,
spoken to by DW-3, that it was the mother
of the victim who used to beat the child. The third is
CRL.A. NOS.429-430 OF 2020 Page 93 of 157
the plea of fabrication, that the appellant was coerced
by the police through a threat of implication in a case
relating to opium husk and was made to sign blank
papers. We consider each in turn, bearing in mind
that the appellant, having been an inmate of the home
in which the child met her death, stands in the
position we have described when dealing with Section
106 of the Evidence Act.
110. As to the plea of alibi, the law is settled and it is
stringent. The plea of alibi is not a matter of mere
assertion. When an accused pleads that he was
elsewhere at the time of the offence, the burden of
establishing that plea lies upon him, and it is a
burden that he must discharge by cogent and
satisfactory evidence which renders his presence at
the scene of the crime not merely doubtful but
impossible. This Court, in Dudh Nath Pandey v.
State of Uttar Pradesh37, held that the plea of alibi
must be proved with certainty so as to exclude the
possibility of the presence of the accused at the place
of occurrence, and in Binay Kumar Singh v. State
of Bihar38, it was reiterated that the burden of
establishing the plea rests wholly upon the accused
who sets it up, and that the plea must be established
not by a preponderance of probabilities alone but by
37 (1981) 2 SCC 166
38 (1997) 1 SCC 283
CRL.A. NOS.429-430 OF 2020 Page 94 of 157
evidence of a quality that makes the presence of the
accused at the scene impossible.
111. When the plea of alibi in the present case is
examined against this standard, it fails at the
threshold, for a reason that is decisive and that
renders it unnecessary to dwell upon the quality of
the evidence adduced in its support. The plea of alibi,
even if it were accepted at its very highest, does not
extend to the time of the offence of murder. The death
of the victim, as the medical evidence establishes and
as we have found, occurred on 23.04.2018. The alibi
set up by the appellant, and spoken to by himself as
DW-1, is that he had left the village on 21.04.2018
and returned on the following day. Upon his own
showing, therefore, the appellant was present in the
home from the afternoon of 22.04.2018, and he was
admittedly present there on 23.04.2018, which is the
very day of the throttling. The mother of the victim,
indeed, deposed that the appellant returned at about
noon on 23.04.2018, a return confirmed by the two
calls she made to him that morning which the call
records establish, and it was after that return that the
child was throttled. The plea of alibi thus does not
even engage the charge of murder, for it places the
appellant back in the home well before the death, and
an alibi that does not cover the time of the offence is
no alibi at all.
CRL.A. NOS.429-430 OF 2020 Page 95 of 157
112. In so far as the plea of alibi was pressed in
relation to the offence of sexual assault said to have
occurred on the night of 21.04.2018, it does not assist
the appellant either. We have found the sexual
assault to be established not merely by reference to a
particular calendar date but by the disclosure of the
victim and by the fresh genital injury found at the
post-mortem examination, which fixes a recent
sexual assault upon the child irrespective of the
precise date. The mother of the victim, who is an
illiterate woman, was understandably imprecise as to
dates, but she clarified in her further crossexamination
that the assault and the beating of the
child had preceded the departure of the appellant to
the Deviya Sthan, and the sequence of events she
described is internally consistent even where her
recollection of the calendar was not. The confusion of
an unlettered witness over dates, against a clear and
consistent account of the sequence of events
corroborated by the physical injury upon the body of
the child, does not create the reasonable doubt that
the appellant seeks to extract from it. The plea of alibi,
whether directed at the murder or at the sexual
assault, accordingly fails.
113. As to the counter-narrative spoken to by DW-3,
who is the son of the appellant, that it was the mother
of the victim who used to beat the child, we find it to
be false and we reject it. It is falsified, in the first
CRL.A. NOS.429-430 OF 2020 Page 96 of 157
place, by the medical evidence, for the death of the
child was caused by asphyxia due to throttling and
her body bore a fresh injury to the genitalia indicative
of sexual assault, and neither the throttling of a child
nor the sexual violation of a child is explained by the
suggestion that her mother used to beat her. The
cause of death and the nature of the injuries are
wholly irreconcilable with the counter-narrative. It is
falsified, in the second place, by the conduct of DW-3
himself, for if he had truly witnessed the mother of
the victim beating the child, it is inconceivable that
he would have kept silent and reported it to no one at
any time, and the emergence of this accusation only
in the witness box, from the son of the appellant,
stamps it as an afterthought contrived to shield his
father. We are unable to place any reliance upon it.
114. The falsity of this defence is not without a
further consequence, for a false defence, while it can
never supply the deficiency of the prosecution
evidence, may in a fit case be pressed into service as
an additional link in the chain of circumstances once
the prosecution has established its case. Where the
prosecution has proved the facts from which the guilt
of the accused may be inferred, and the accused
responds with a defence that is demonstrably false,
the falsity of that defence lends further assurance to
the conclusion of guilt. This principle assumes a
particular significance in the present case when it is
CRL.A. NOS.429-430 OF 2020 Page 97 of 157
read with Section 106 of the Evidence Act, to which
we have already adverted. For the reasons explained
in Trimukh Maroti Kirkan (Supra), the appellant, as
an inmate of the home in which the child died, was
bound to offer a true and plausible explanation of how
she came to be sexually assaulted and throttled, and
the false explanation he gave, in the counternarrative
of his son, becomes under Section 106 an
additional circumstance completing the chain against
him.
115. As to the plea of fabrication, that the appellant
was threatened by the police with implication in a
case relating to opium husk and was made to sign
blank papers, we find it to be wholly unsubstantiated.
It rests upon nothing beyond the assertion of the
appellant in his statement under Section 313 of the
CrPC, and it was raised for the first time at that stage,
without a foundation having been laid for it in the
cross-examination of the Investigating Officer or of
any other prosecution witness. It is, moreover,
inconsistent with the very defence of alibi that the
appellant simultaneously advanced, for a man who
says that he was elsewhere and had no part in the
events does not ordinarily also say that he was
coerced into a fabricated case, and the two defences
sit uneasily together. Defences that are mutually
destructive, each undermining the premise of the
other, do not strengthen the case of an accused but
CRL.A. NOS.429-430 OF 2020 Page 98 of 157
detract from the credibility of both. We reject the plea
of fabrication.
116. For these reasons, the whole of the defence case
fails. The plea of alibi does not cover the time of the
murder and does not answer the sexual assault. The
counter-narrative of DW-3 is false, is irreconcilable
with the medical evidence, and operates, with Section
106 of the Evidence Act, as an additional link against
the appellant. And the plea of fabrication is
unsubstantiated and is inconsistent with the alibi.
None of the three limbs of the defence raises a
reasonable doubt upon the case that the prosecution
has established.
SECTION J- THE ALLEGED DEFECTS IN THE
INVESTIGATION
117. The appellant mounted a sustained attack upon
the investigation, contending that the crime had been
foisted upon him as an afterthought. The principal
features of this attack were that the First Information
Report was registered against an unknown person
notwithstanding the statement of the mother of the
victim, that the involvement of the appellant rested
upon an anonymous telephone call which was
unproved and unrecorded, that the appellant was
arrested only on 25.04.2018 and at the police station
rather than at the scene, that the offences of rape and
CRL.A. NOS.429-430 OF 2020 Page 99 of 157
the offences under the POCSO Act were added
without any section alteration report, and that the
disclosure and the consequent recoveries were
falsified, the panch witnesses having turned hostile.
We address these contentions upon a principle that
must first be stated, for it governs the whole of this
section.
118. The principle is that a defect in the investigation
does not, by itself, entitle the accused to an acquittal
where the evidence adduced at the trial is otherwise
found to be trustworthy and sufficient to establish
guilt. The guilt or the innocence of the accused is to
be determined upon the evidence led before the court,
and a lapse on the part of the investigating agency
cannot be permitted to enure to the benefit of the
accused so as to defeat a case that is otherwise
proved, for to hold otherwise would place it within the
power of an errant investigator to frustrate the course
of justice and would visit upon the victim the
consequences of the failings of the investigating
agency. This Court, in Karnel Singh v. State of
Madhya Pradesh39, and in State of Karnataka v.
K. Yarappa Reddy40, held that a lapse on the part of
the Investigating Officer cannot affect the credibility
of the evidence of the witnesses where that evidence
is otherwise reliable, and in C. Muniappan v. State
39 (1995) 5 SCC 518
40 (1999) 8 SCC 715
CRL.A. NOS.429-430 OF 2020 Page 100 of 157
of Tamil Nadu41, this Court reaffirmed that a defect
in the investigation, by itself, cannot be a ground for
acquittal. It is upon this foundation that we examine
the defects alleged.
119. As to the registration of the First Information
Report against an unknown person, the submission
proceeds upon a misapprehension of the office of
such a report, which is not an encyclopaedia of the
prosecution case but an instrument to set the
machinery of the criminal law in motion. The report
here was registered upon the information of the
unnatural death of the child, at the inception of the
investigation and before the culpability of the
appellant had been established, and it was natural
that it should have been registered against an
unknown person. The omission of the name of the
appellant from the printed report does not efface the
statement that the mother made in the course of the
investigation, nor does it detract from the evidence led
at the trial. If anything, the registration of the report
against an unknown person, and the unhurried
manner in which the investigation thereafter fastened
guilt upon the appellant, tell against the theory that
the police had set out to foist a false case upon him,
for an agency bent upon a false implication would
have named its target at the earliest.
41 (2010) 9 SCC 567
CRL.A. NOS.429-430 OF 2020 Page 101 of 157
120. The anonymous telephone call and the
discrepancies concerning it, and the delay in the
arrest of the appellant, do not touch the substance of
the case. The source of the first suspicion, and the
precise point at which the arrest was effected, bear
upon the conduct of the investigation and not upon
the commission of the offence, which stands
established by the evidence we have accepted. We
would observe, moreover, that the circumstance that
the appellant was not arrested at once but was left at
large while the investigation took its course is again
difficult to reconcile with the theory of a police force
determined to frame him, for the framing of an
innocent man is not ordinarily accomplished by
leaving him at liberty.
121. As to the addition of the offences of rape and of
the offences under the POCSO Act without a section
alteration report, we are unable to regard this as a
circumstance that vitiates the prosecution. The report
was registered upon an unnatural death before the
post-mortem examination, and it was that
examination of 24.04.2018 that revealed the fresh
genital injury indicative of sexual assault, upon
which the sexual offences came naturally to be added.
It is, in any event, settled that cognizance is taken of
an offence and not of a section, and that the mention
or the omission of a particular provision is not
decisive, for it is the duty of the court to apply the
CRL.A. NOS.429-430 OF 2020 Page 102 of 157
correct provisions to the facts proved before it. The
charges were framed by the Trial Court on
02.07.2018 under all of the relevant provisions after
an application of judicial mind, the appellant
defended himself against them, and no prejudice has
been shown to have been occasioned to him. In the
absence of prejudice, an irregularity of this
administrative character cannot vitiate the trial.
122. As to the disclosure statement and the
recoveries, and the circumstance that the panch
witnesses turned hostile, we do not find it necessary
to rest anything upon the disclosure or the recoveries
at all. The clothes of the victim were produced by the
mother herself, as she deposed, and the case upon
the sexual assault and the death does not depend
upon the disclosure attributed to the appellant or
upon the recoveries said to have followed from it. We
may therefore leave the disclosure and the recoveries
entirely out of consideration, and the case is in no
manner weakened by doing so. The submission
founded upon the hostility of the panch witnesses is
thus rendered academic, for it assails a limb of the
prosecution case upon which we place no reliance.
123. For these reasons, the attack upon the
investigation fails. Such defects as are alleged are, in
part, founded upon a misapprehension of the office of
the documents concerned, and are, for the rest,
defects that do not touch the substance of the case,
CRL.A. NOS.429-430 OF 2020 Page 103 of 157
which stands established upon evidence that we have
found to be trustworthy. Upon the settled principle
that a defective investigation does not enure to the
benefit of the accused where the evidence is otherwise
reliable, the whole of this attack is rejected.
SECTION K - THE OFFENCES ESTABLISHED
124. Upon the findings we have recorded, it remains
to identify how the evidence establishes each of the
offences of which the appellant has been convicted.
We do so in this section, addressing the offence of
murder, the offences of aggravated sexual assault
under the IPC and the POCSO Act, and the offence of
causing disappearance of evidence.
125. As to the offence of murder punishable under
Section 302 of the IPC, the evidence establishes it
beyond doubt. The medical evidence proves that the
death of the victim was homicidal and was caused by
asphyxia resulting from throttling, that is, by the
compression of the throat by hand. The ocular
account of the mother, whom we have found to be
reliable, proves that it was the appellant who throttled
the child, and that account is confirmed by the finger
impressions upon the throat of the child that she
observed, by the medical opinion as to the cause of
death, and by the extra-judicial confession of the
appellant. The act of throttling a child of about six
CRL.A. NOS.429-430 OF 2020 Page 104 of 157
years by seizing her throat with both hands, and of
persisting in that act until the child ceased to live, is
an act from which the intention to cause death is to
be inferred as a matter of plain and inescapable
inference, for such an act is done with the intention
of causing death within the meaning of clause firstly
of Section 300 of the IPC, and is, in any event, an act
done with the intention of causing bodily injury
sufficient in the ordinary course of nature to cause
death within the meaning of clause thirdly. No
question of any exception to Section 300 arises upon
the facts. The offence of murder under Section 302 of
the IPC is established.
126. As to the offence of aggravated penetrative
sexual assault, it is necessary first to establish the
age of the victim, for the age is the fact that
determines the character and the gravity of the
offence. The age of the victim is proved by the birth
certificate that was seized in the course of the
investigation, and by the testimony of the mother that
the victim was about six years of age at the time of
her death, which testimony was not displaced. We
find it established that the victim was a child well
below twelve years of age. The fact of penetrative
sexual assault upon the victim is established by the
disclosure of the victim, admissible under Section
32(1) of the Evidence Act, by the account of the
mother, and by the fresh tear at the fourchette with
CRL.A. NOS.429-430 OF 2020 Page 105 of 157
oozing of blood found at the post-mortem
examination, which we have held to be the physical
confirmation of the assault. The identity of the
appellant as the person who committed the assault is
established by the same body of evidence.
127. Upon these facts, the offence punishable under
Section 376AB of the IPC is established. That
provision, which prescribes the punishment for the
rape of a woman under twelve years of age, was
inserted into the IPC by the Criminal Law
(Amendment) Act, 2018, with effect from 21.04.2018,
being the date on which the corresponding Criminal
Law (Amendment) Ordinance, 2018 had come into
force. The penetrative sexual assault upon the victim
is established as having occurred on the night of
21.04.2018 and thereafter, that is, on and after the
date on which the provision came into force, and the
provision is therefore squarely attracted, and no
question of any retrospective application of a penal
provision, such as would offend Article 20(1) of the
Constitution of India, arises. The victim having been
a child below twelve years of age, and the appellant
having committed penetrative sexual assault upon
her, the offence under Section 376AB of the IPC is
made out.
128. The same facts establish the offences under
Sections 5 and 6 of the POCSO Act. Section 5
enumerates the forms of aggravated penetrative
CRL.A. NOS.429-430 OF 2020 Page 106 of 157
sexual assault, and Section 6 prescribes the
punishment for it. The assault in the present case
falls within aggravated penetrative sexual assault
upon more than one count. It falls within clause (m)
of Section 5, in that it was committed upon a child
below twelve years of age. It falls within clause (n) of
Section 5, in that it was committed by the appellant,
who, being the step-father of the victim and residing
in the same household, was a relative of the child.
Once the foundational facts are established by the
prosecution, the presumption arising under Section
29 of the POCSO Act comes into operation. That
provision enacts that where a person is prosecuted
for an offence under, among others, Sections 5 and 6
of the POCSO Act, the Special Court shall presume
that such person has committed the offence, unless
the contrary is proved. The presumption is not a
substitute for the proof of the foundational facts, and
it operates only after those facts, namely the age of
the victim, the fact of penetrative sexual assault, and
the identity of the accused as the assailant, have been
established by the prosecution. In the present case
those foundational facts stand established, as we
have found, by evidence independent of the
presumption, and the burden thereupon cast upon
the appellant to prove the contrary has not been
discharged, his defences having been found to be
false. We wish to make it clear that we do not rest the
CRL.A. NOS.429-430 OF 2020 Page 107 of 157
conviction upon the statutory presumption. The
conviction rests upon the affirmative evidence we
have discussed, and the presumption under Section
29 operates only to reinforce a conclusion that the
evidence independently establishes. The offences
under Sections 5 and 6 of the POCSO Act are made
out.
129. The offences under Sections 376(2)(f) and
376(2)(n) of the IPC are likewise established upon the
findings we have recorded. The offence under Section
376(2)(f) is attracted because the appellant, being the
step-father and a person in a position of trust and
authority in relation to the victim, committed rape
upon her. The offence under Section 376(2)(n) is
attracted because the appellant committed rape upon
the victim repeatedly, as the evidence of the sustained
and repeated abuse establishes.
130. As to the offence punishable under Section 201
of the IPC, of causing the disappearance of evidence,
it is established by the conduct of the appellant in
proposing that the child be buried at once at
Kushalgarh, with the knowledge that her death was a
homicide and with the intention of screening himself
from legal punishment, a design that was frustrated
only by the insistence of the mother that the body be
taken to her family, where the truth came to light. The
ingredients of the offence under Section 201 of the
IPC are satisfied.
CRL.A. NOS.429-430 OF 2020 Page 108 of 157
131. In the result, the offences under Sections 302,
376(2)(f), 376(2)(n), 376AB and 201 of the IPC, and
under Sections 5 and 6 of the POCSO Act, are each
established against the appellant upon the evidence
on the record.
SECTION L- THE COMPLETE PICTURE
132. Before recording our conclusions, we think it
right to draw together the several strands of the
evidence into a single view, both because the true
strength of a case of this nature is revealed only when
its parts are seen as a whole, and because it is
necessary to address the character of the evidence
upon which our conclusion rests.
133. The case against the appellant is, upon its
central events, a case of direct evidence. The
throttling of the child was witnessed by the mother,
who saw the appellant with both hands upon the
throat of the child, and the sexual assault was spoken
to by the victim herself in the disclosure she made to
her mother. To this extent the case does not depend
upon inference at all. But the direct evidence does not
stand alone. It is embedded within, and is confirmed
at every point by, a chain of incriminating
circumstances, namely the medical evidence
establishing a homicidal death by throttling and a
recent sexual assault, the setting of the crime within
CRL.A. NOS.429-430 OF 2020 Page 109 of 157
a home whose only adult occupants were the
appellant and the mother, the telephone record fixing
the return of the appellant on the fatal day, his
enquiry whether the child had spoken, his refusal of
medical aid, his agitation upon discovery, his extrajudicial
confession, and his attempt to procure an
immediate burial. The case is therefore one of direct
evidence powerfully corroborated by a complete chain
of circumstances, and it is stronger than a case
resting upon either alone.
134. In so far as the case is supported by
circumstantial evidence, we have borne in mind the
settled conditions that such evidence must satisfy.
This Court, in Sharad Birdhichand Sarda (Supra),
laid down that the circumstances from which the
conclusion of guilt is to be drawn must be fully
established, that the facts so established must be
consistent only with the hypothesis of the guilt of the
accused, that the circumstances must be of a
conclusive nature and tendency, that they must
exclude every possible hypothesis except the one to
be proved, and that there must be a complete chain
of evidence so as to leave no reasonable ground for a
conclusion consistent with the innocence of the
accused. The circumstances in the present case
satisfy each of these conditions. Each circumstance
we have relied upon is fully established upon the
evidence. Taken together they are consistent only
CRL.A. NOS.429-430 OF 2020 Page 110 of 157
with the guilt of the appellant. And they exclude every
reasonable hypothesis of innocence, for no
hypothesis consistent with the innocence of the
appellant can accommodate the throttling witnessed
by the mother, the finger impressions upon the throat
of the child, the fresh genital injury, the confession to
the family, and the whole of the incriminating
conduct, occurring as they did within a home in
which the appellant was present and of which he has
offered no true account. The chain is complete, and it
points unerringly to the guilt of the appellant and to
no one else.
135. When the established facts are marshalled and
read as a connected whole, the picture that emerges
admits of no innocent explanation. A widowed and
illiterate woman brought her small daughter into the
home of the appellant, a man whose three former
wives had left him for his violence. Behind the walls
of that home he preyed upon the child, silencing the
mother by the threat that both would be buried and
branded as having fled. The rape of the night of
21.04.2018, of which the child told her mother and
which left the injury later found at the post-mortem,
was followed by days in which the appellant denied
the child the aid that might have saved her, and on
23.04.2018, his first concern being whether she had
spoken, he throttled her with his own hands as the
mother entered, and then sought to bury her at once,
CRL.A. NOS.429-430 OF 2020 Page 111 of 157
until the mother carried the body to her own family,
where he confessed. Every piece of the evidence we
have accepted falls into its place within this account,
and no part of it can be reconciled with the innocence
of the appellant.
136. We are conscious that the appellant stands
convicted upon the testimony, in the main, of a single
witness, and the anxious scrutiny that such a case
demands has been present to our minds at every
stage. But the mother of the victim is no chance
witness of doubtful worth whose word is to be
weighed with suspicion. She is a witness whose core
account we have found to be true, and truth in her
case does not stand alone, for it is confirmed by the
injuries upon the body of her child, by the dying voice
of the child herself, by the record of the calls with
which she summoned the appellant on the fatal
morning, by the confession he made to her family,
and by his own conduct at every turn. Her account
has been assailed from every direction, and it has
held. Behind the walls of that home there were but
two souls who could have told what was done within
it, a child and her mother. The child the appellant
silenced forever, with his hands about her throat. The
mother he now seeks to silence in another way, by
turning against her the very fear, the isolation and
the dependence in which he had bound her, and by
asking this Court to read the wounds of her captivity
CRL.A. NOS.429-430 OF 2020 Page 112 of 157
as the marks of a liar. That plea we reject, and we
reject it without hesitation. A man may not first
reduce a woman to silence and then claim acquittal
from the silence he imposed, nor purchase his escape
by blackening the one witness whom his own hand
left behind to accuse him.
PART VIII- CONCLUSION ON CONVICTION
137. In the light of the analysis that precedes, we
record our conclusions upon the points for
determination that we framed at the outset.
138. Upon the first point, we hold that the infirmity
which attended the recording of the evidence of the
mother of the victim as PW-1 on 16.07.2018 stands
effectively and completely cured by the further crossexamination
conducted pursuant to the order of this
Court dated 08.05.2025, the appellant having had a
full and fair opportunity, through counsel of his own
choice, to test her evidence upon a conjoint reading
of her deposition dated 16.07.2018 and her further
cross-examination dated 14.06.2025.
139. Upon the second point, we hold that the
testimony of the mother of the victim upon the core
events is reliable, and that it is corroborated in its
material particulars by the medical evidence, by the
disclosure of the victim, by the telephone record, by
the extra-judicial confession of the appellant and by
CRL.A. NOS.429-430 OF 2020 Page 113 of 157
his conduct. The attacks upon her credibility have
each been found to be without substance.
140. Upon the third point, we hold that the death of
the victim is established to have been homicidal and
to have been caused by asphyxia resulting from
throttling, and that it was the appellant who throttled
the victim to death.
141. Upon the fourth point, we hold that the
appellant committed penetrative sexual assault upon
the victim, a child below twelve years of age, and that
the offence of aggravated penetrative sexual assault
is established against him.
142. Upon the fifth point, we hold that the plea of
alibi set up by the appellant does not cover the time
of the offence of murder and does not answer the
offence of sexual assault, that the counter-narrative
spoken to by DW-3 is false and is irreconcilable with
the medical evidence, and that the plea of fabrication
is unsubstantiated. The defence, in each of its limbs,
fails to raise a reasonable doubt upon the case
established by the prosecution.
143. Upon the sixth point, we hold that the defects
and the alleged mala fides in the investigation are not
of such a character as to vitiate the prosecution case,
which stands established upon evidence that we have
found to be trustworthy and which does not enure to
the benefit of the appellant.
CRL.A. NOS.429-430 OF 2020 Page 114 of 157
144. Upon the seventh point, we hold that the
offences under Sections 302, 376(2)(f), 376(2)(n),
376AB and 201 of the IPC, and under Sections 5 and
6 of the POCSO Act, are each established against the
appellant beyond reasonable doubt.
145. In the result, we find no infirmity in the
concurrent findings of the Trial Court and the High
Court in so far as they hold the appellant guilty of the
offences with which he was charged, and we affirm
the conviction of the appellant under Sections 302,
376(2)(f), 376(2)(n), 376AB and 201 of the IPC and
under Sections 5 and 6 of the POCSO Act. The
conviction of the appellant is accordingly upheld.
146. There remains the question of sentence. The
Trial Court imposed, and the High Court confirmed,
the sentence of death upon the appellant for the
offences under Section 376AB and Section 302 of the
IPC. The correctness of that sentence, and the
question whether, upon a consideration of the
aggravating and the mitigating circumstances and of
the material now placed before us, the sentence of
death ought to be sustained or ought to be
commuted, fall to be considered separately. We
accordingly proceed to take up the question of
sentence.
CRL.A. NOS.429-430 OF 2020 Page 115 of 157
PART IX - THE QUESTION OF SENTENCE
SECTION M- THE SENTENCING PROCEEDINGS AND
THE MATERIAL NOW BEFORE THE COURT
147. Having affirmed the conviction of the appellant,
we come to the question upon which these appeals
must ultimately turn, namely whether the sentence
of death imposed upon the appellant by the Trial
Court and confirmed by the High Court ought to be
sustained, or whether it ought to be commuted to a
sentence of imprisonment. This is the gravest
question that a criminal court is ever called upon to
decide, and it demands a scrutiny more thorough
than any other, for the sentence of death is unique in
its severity and in its irrevocability. Before we set out
the law that governs the question and proceed to
apply it, it is necessary to record the manner in which
the question of sentence was dealt with by the courts
below and the material that is now available to this
Court, for the two are connected.
148. We are constrained to observe, at the outset and
with candour, that the manner in which the question
of sentence was dealt with by the Trial Court did not
conform to the standard that the law requires. The
Trial Court convicted the appellant and sentenced
him to death by its judgment dated 17.12.2018, that
CRL.A. NOS.429-430 OF 2020 Page 116 of 157
is, it recorded the conviction and imposed the
sentence of death on one and the same day. Section
235(2) of the CrPC requires that after a judgment of
conviction is pronounced, the accused shall be heard
on the question of sentence before the sentence is
passed upon him. This requirement is not an empty
formality. In a case in which the sentence of death is
a possible outcome, the hearing on sentence
contemplated by Section 235(2) of the CrPC is
intended to afford a real and meaningful opportunity
to the accused to place before the court all the
circumstances that bear upon the choice of sentence,
including the circumstances personal to him that no
one but he is in a position to bring forward. This
Court, in Allaudin Mian v. State of Bihar42, held
that where the conviction is for an offence punishable
with death, the court ought ordinarily not to impose
the sentence on the same day on which the conviction
is recorded, but should afford the accused a genuine
opportunity, if necessary by adjourning the matter, to
adduce material relevant to the question of sentence,
and that the observance of this requirement is
essential to the just exercise of the sentencing
discretion. The recording of the conviction and the
imposition of the sentence of death upon the
42 (1989) 3 SCC 5
CRL.A. NOS.429-430 OF 2020 Page 117 of 157
appellant on the same day fell short of this
requirement.
149. The consequence of this was that no material
relevant to the individualised assessment of the
appellant as a person, as distinct from the
assessment of the crime, was placed before the Trial
Court, and none was placed before the High Court.
The courts below were thus called upon to decide the
question of sentence without the very material that
the law regards as indispensable to that decision,
namely material concerning the background, the
circumstances, the mental and social history and the
prospects of reformation of the offender. The State,
for its part, led no evidence directed to the question
whether the appellant was beyond the possibility of
reform. The High Court, in confirming the sentence,
proceeded upon a formulation by which it assessed
what it described as the crime test at one hundred
per cent and the criminal test at zero per cent, a
formulation we address in Section Q.
150. We record these deficiencies not by way of
censure of the courts below, which decided the matter
upon the material then before them, but because the
identification of the deficiency is the first step towards
its cure, and because the manner in which the
question of sentence now falls to be decided by this
Court is shaped by it. Just as the infirmity in the
recording of the evidence of the mother of the victim
CRL.A. NOS.429-430 OF 2020 Page 118 of 157
was cured at the stage of these appeals by the further
cross-examination that this Court directed, so too the
deficiency in the sentencing exercise below has been
cured at this stage by the reception of a full and
comprehensive body of material bearing upon the
question of sentence, and by a full hearing upon it.
151. This Court permitted the appellant to place
upon the record the material relevant to the
individualised assessment of sentence that had been
absent below, and this Court further directed, by its
order dated 17.10.2024, that a psychological
evaluation of the appellant be conducted. There is
accordingly now before us a Mitigation Investigation
Report, prepared by a mitigation investigator who
conducted interviews over several days with the
appellant, with the members of his family, and with
his co-inmates, and which sets out in detail the
circumstances of the appellant's childhood, his family
history, the adversities of his life, and his conduct and
development during his years of incarceration. There
is before us an affidavit sworn by the daughter of the
appellant. There is before us the record of the conduct
of the appellant in custody. And there is before us a
comprehensive note on the question of sentence filed
on behalf of the appellant, together with a compilation
of the decisions of this Court bearing upon the
sentence in cases of this nature.
CRL.A. NOS.429-430 OF 2020 Page 119 of 157
152. In compliance with the order dated 17.10.2024,
a medical board of the Mahatma Gandhi Memorial
Medical College, Indore examined the appellant at the
Central Jail, Ujjain on 09.11.2024, and submitted its
report of the same date. There is further before us,
obtained pursuant to the same order, the report of
the Probation Officer and the certificates of the jail
authorities as to the conduct of the appellant in
custody. We have heard learned counsel for the
appellant and learned counsel for the State at length
upon the question of sentence, and the whole of this
material, including the report of the medical board
and the reports of the jail authorities, has been
thoroughly considered by us.
153. The reception and consideration of such
material at the stage of the appeal, where it was not
placed before the courts below, is a course that this
Court has adopted in a series of decisions in order
that the sentencing decision may be made upon a
complete and not a truncated record. In Mohd.
Mannan v. State of Bihar43, and in Manoj v. State
of Madhya Pradesh44, this Court called for and
acted upon material of precisely this character,
including reports upon the social and psychological
background of the convict and upon his conduct in
prison, in order to ensure that the choice between the
43 (2019) 16 SCC 584
44 (2023) 2 SCC 353
CRL.A. NOS.429-430 OF 2020 Page 120 of 157
sentence of death and the sentence of life
imprisonment was made after a genuine and
individualised consideration of the offender and not
of the offence alone. We propose to decide the
question of sentence in these appeals upon the same
footing, that is, upon a fresh and independent
consideration of the whole of the material now before
us, giving to the material tendered on behalf of the
appellant its full and fair weight, and applying to it
the settled principles of law to which we now turn.
SECTION N- THE LAW GOVERNING THE SENTENCE
OF DEATH
154. The choice between the sentence of death and
the sentence of imprisonment for life, in a case in
which the law permits the former, is governed by
principles that have been settled by this Court over
more than four decades, and it is necessary to set
them out before we apply them, for the discipline of
the sentencing exercise lies in the faithful application
of a declared method rather than in an unstructured
intuition.
155. The starting point is statutory. Section 354(3) of
the CrPC transformed the sentencing structure for
the gravest offences by making life imprisonment the
rule and the sentence of death the exception. The
provision reads as follows.
CRL.A. NOS.429-430 OF 2020 Page 121 of 157
"354. Language and contents of
judgment.— ... (3) When the conviction is
for an offence punishable with death or, in
the alternative, with imprisonment for life
or imprisonment for a term of years, the
judgment shall state the reasons for the
sentence awarded, and, in the case of
sentence of death, the special reasons for
such sentence."
The effect of the provision is that, for an offence
for which death is a permissible sentence, the
sentence of imprisonment for life is the normal
rule, and the sentence of death may be awarded
only for special reasons, which must be
recorded. The burden of the sentencing exercise
is thus to ascertain whether such special
reasons exist.
156. The content of those special reasons was
thoroughly expounded by the Constitution Bench of
this Court in Bachan Singh v. State of Punjab45,
which remains the governing authority and the lens
through which every subsequent decision is to be
read. Several propositions established in Bachan
Singh (Supra) are of immediate relevance to the
present case. The first is that the sentence of death is
constitutionally permissible only in the rarest of rare
cases, that is, where the alternative of imprisonment
45 (1980) 2 SCC 684
CRL.A. NOS.429-430 OF 2020 Page 122 of 157
for life is unquestionably foreclosed, the expression
"rarest of rare" being not a rhetorical flourish but a
substantive standard signifying that death is to be
reserved for those exceptional cases in which no
sentence short of death would meet the ends of
justice. The second is that, in making the choice of
sentence, the court is required to have regard to the
aggravating and the mitigating circumstances both of
the crime and of the criminal, so that the focus of the
sentencing inquiry is not upon the crime alone but
upon the crime and the criminal together, and a
sentencing exercise that fixes its gaze upon the
enormity of the crime while treating the
circumstances of the criminal as immaterial is a
departure from the very method that Bachan Singh
(Supra) prescribes. The third is that the mitigating
circumstances are to be construed liberally and
expansively and full weight is to be given to them, for
Bachan Singh (Supra) set out, by way of illustration
and not of exhaustive enumeration, a range of
mitigating factors, including the age of the accused,
the probability that he can be reformed and
rehabilitated, and the conditions under which he
committed the offence, and directed that the court
accord to these factors a generous and not a grudging
consideration. The fourth is that the probability of
reformation and rehabilitation is a factor of particular
importance, and that the State bears the burden of
CRL.A. NOS.429-430 OF 2020 Page 123 of 157
leading evidence to establish that the accused is
beyond the possibility of reform and is a continuing
threat to society, so that where the State leads no
such evidence, that circumstance tells in favour of the
retention of the alternative of life imprisonment.
157. The principles of Bachan Singh (Supra) were
given a practical structure by this Court in Machhi
Singh v. State of Punjab46, which identified the
categories of cases in which the collective conscience
of the community may be so shocked that the
imposition of the sentence of death may be called for,
being cases distinguished by the manner of the
commission of the murder, the motive for it, the antisocial
or abhorrent nature of the crime, the
magnitude of the crime, and the personality of the
victim, as for instance where the victim is an innocent
child. Machhi Singh (Supra) directed that a balance
sheet of aggravating and mitigating circumstances be
drawn up, and that in doing so the mitigating
circumstances be accorded full weightage, and it
framed two questions to be answered before the
sentence of death is imposed, namely whether there
is something uncommon about the crime which
renders the sentence of life imprisonment inadequate,
and whether the circumstances of the crime are such
that there is no alternative but to impose the sentence
46 (1983) 3 SCC 470
CRL.A. NOS.429-430 OF 2020 Page 124 of 157
of death even after according maximum weightage to
the mitigating circumstances which speak in favour
of the offender. We shall answer both questions in
due course.
158. This Court, in Shankar Kisanrao Khade v.
State of Maharashtra47, formulated the inquiry as
a set of three tests, namely the crime test, the
criminal test and the rarest of rare test. The crime test
is satisfied where the aggravating circumstances of
the crime are fully established. The criminal test
requires that there be no mitigating circumstances
favouring the accused, and it is a test directed to the
circumstances of the criminal. Only where the crime
test is satisfied and the criminal test yields nothing in
favour of the accused does the case proceed to the
rarest of rare test, which asks whether the case
belongs to that exceptional category in which the
community would demand the death penalty and in
which life imprisonment would be wholly inadequate.
It is to be observed that the criminal test is not a test
that the crime is grave, but a test that examines what
may be said on behalf of the offender, and that it can
seldom be answered by a bald assertion that there is
nothing to be said, for the circumstances of an
offender are rarely wholly barren of mitigation.
47 (2013) 5 SCC 546
CRL.A. NOS.429-430 OF 2020 Page 125 of 157
159. Two further precedents must be noted, for they
bear directly upon the present case. The first is that
this Court has, in Union of India v. V. Sriharan48,
affirmed the existence of a sentencing option that lies
between the sentence of death and the sentence of life
imprisonment as ordinarily understood, namely the
sentence of imprisonment for life which is to extend
to the whole of the remainder of the natural life of the
convict, or for a specified term of years, without the
benefit of remission. The availability of this
intermediate option is of significance to the
sentencing choice, because the sentence of death
cannot be said to be unquestionably the only
adequate sentence unless the court has considered,
and has found wanting, the alternative of
imprisonment for the remainder of natural life or for
a long fixed term without remission. The existence of
the middle path narrows the class of cases in which
death is truly unavoidable, and a court considering
the sentence of death must ask itself whether this
intermediate sentence would not sufficiently meet the
ends of justice.
160. The second is the emphasis, in the more recent
jurisprudence of this Court, upon the procedural and
substantive rigour of the individualised sentencing
inquiry. In Manoj v. State of Madhya Pradesh
48 (2016) 7 SCC 1
CRL.A. NOS.429-430 OF 2020 Page 126 of 157
(Supra) , this Court, drawing together the threads of
the earlier decisions, underscored that the sentencing
court must call for and consider material bearing
upon the psychological and social profile of the
convict and upon his conduct in prison, that the
assessment of the mitigating circumstances must be
genuine and individualised, and that the probability
of reformation must be seriously and not
perfunctorily considered. In Rajendra Pralhadrao
Wasnik v. State of Maharashtra49, this Court held
that before imposing the sentence of death the court
is obliged to consider the probability of the
reformation and rehabilitation of the convict, that this
consideration cannot be foreclosed by the mere
gravity of the crime, and that material such as the
conduct of the convict in jail is relevant to it. These
decisions do not dilute the standard of Bachan
Singh (Supra). They enforce it, by insisting that the
mitigating half of the balance sheet be filled in with
real material and weighed in good faith, and not left
blank.
161. From this line of precedents, the questions that
this Court must answer, in the sequence in which we
shall answer them, are these. First, what are the
aggravating circumstances of the crime, and are they
established. Second, what are the mitigating
49 (2019) 12 SCC 460
CRL.A. NOS.429-430 OF 2020 Page 127 of 157
circumstances of the crime and of the criminal, taken
at their fullest and fairest. Third, upon a weighing of
the one against the other, and after according to the
mitigating circumstances their full weight, is this a
case in which the alternative of imprisonment for life,
including imprisonment for the remainder of natural
life or for a long term without remission, is
unquestionably foreclosed, so that the sentence of
death is the only sentence that would meet the ends
of justice. It is to the first of these questions that we
now turn.
SECTION O - THE AGGRAVATING CIRCUMSTANCES
162. We turn first to the aggravating circumstances
of the crime. In setting them out, we draw upon the
findings that we have already recorded in dealing with
the conviction, and we do not restate the evidence,
but gather the established facts into the
circumstances that bear upon the gravity of the
offence. The aggravating circumstances in the present
case are neither few nor slight, and they are not, as is
sometimes the case, merely different descriptions of a
single feature of the crime. They are distinct, and they
accumulate, and it is necessary to identify each of
them separately, for their number and their variety
are themselves a feature of the case.
CRL.A. NOS.429-430 OF 2020 Page 128 of 157
163. The first and the most compelling aggravating
circumstance is the extreme youth and the utter
helplessness of the victim. The victim was a girl child
of about six years of age. She was incapable of
defending herself, incapable of escaping her
tormentor, and incapable even of comprehending
fully what was being done to her. A crime of sexual
violence and murder committed upon a child of such
tender years occupies a place among the gravest of
offences, for it is directed against a victim who is
wholly defenceless and who is entitled to the
protection of every adult around her. This Court has
repeatedly recognised that the personality of the
victim, and in particular the youth and helplessness
of a child victim, is a circumstance of great weight in
the assessment of the gravity of the crime.
164. The second aggravating circumstance, which is
intimately connected with the first and which
deepens its gravity, is the relationship of trust and
guardianship that the appellant bore to the victim,
and his violation of it. The appellant was the stepfather
of the victim. When the mother of the victim
entered upon her marriage with the appellant and
brought her child into his home, the child was
delivered into his protection, and the appellant stood
towards her in the position of a guardian, of a father
in the household in which she lived. The home ought
to have been the safest place for the child, and the
CRL.A. NOS.429-430 OF 2020 Page 129 of 157
appellant ought to have been among those charged
with her protection. Instead, the appellant made the
home the site of her violation and made himself the
author of it. The betrayal of the trust reposed in a
guardian, and the transformation of the protector into
the predator, is an aggravating circumstance of a high
order, for it strikes not only at the child but at the
security of the familial relation itself, upon which the
safety of every child depends.
165. The third aggravating circumstance is that the
crime was not a solitary or an isolated act, but the
culmination of a sustained course of predation
carried on over a period of months. The mother had
stated that the ill-treatment and the sexual abuse of
the victim by the appellant began within a few months
of the marriage and continued thereafter, that the
appellant subjected the victim to sexual assault on
more than one occasion, and that the abuse escalated
over time until it ended in the rape and the killing.
This is not, therefore, a case of a single aberrant act
committed in a moment of loss of self-control. It is a
case of repeated, deliberate and calculated violation
of a child, continuing over time and concealed by
threats, and the sustained and calculated character
of the offence is a circumstance that aggravates it, for
it bespeaks not a momentary succumbing to impulse
but a settled and continuing course of criminal
conduct.
CRL.A. NOS.429-430 OF 2020 Page 130 of 157
166. The fourth aggravating circumstance concerns
the conduct of the appellant during the final days of
the life of the victim, which was marked by a peculiar
cruelty. After the rape of the night of 21.04.2018, the
victim was left to suffer over the days that followed in
a deteriorating condition, unable to retain water,
vomiting and in evident distress. The appellant, who
alone had the means and the authority to obtain
medical aid for her, not only withheld it but actively
refused it, dismissing the plea of the mother with the
assertion that the child was pretending and would not
die, and leaving the home while the child suffered.
The child was thus kept, over a period of about two
days, within the reach of a death that timely medical
intervention might have averted, and the callousness
of this conduct, prolonging the suffering of a mortally
injured child and denying her the aid that might have
saved her, is a circumstance that aggravates the
crime.
167. The fifth aggravating circumstance, and in our
judgment the gravest single feature of the case,
concerns the motive and the purpose of the murder.
This was not a killing committed in the course of a
quarrel, or in sudden anger, or for gain. Upon our
findings, the appellant throttled the victim in order to
silence her and to suppress the disclosure of the
sexual assault he had perpetrated upon her. The
CRL.A. NOS.429-430 OF 2020 Page 131 of 157
conduct of the appellant reveals this purpose with
clarity. His first concern upon returning to the home
on 23.04.2018 was not for the health of the gravely
ailing child but to ascertain whether she had
disclosed anything to her mother, and when the child
screamed he throttled her. The murder was thus
instrumental to the concealment of the rape. The
child was killed because she was the witness to, and
the living evidence of, the crime that had been
committed upon her, and she was killed to ensure her
silence. A murder committed to destroy the victim of
an antecedent crime, and to extinguish the evidence
of it, is among the most reprehensible of killings, for
it treats the life of the child as an obstacle to be
removed in the service of the criminal's own impunity.
168. The sixth aggravating circumstance is the
manner of the killing. The appellant killed the victim
by throttling her, that is, by seizing the throat of a
small child in his own hands and compressing it until
she died. This is a mode of killing that is intimate and
that requires the sustained application of force over
the period necessary to extinguish life, during which
the killer cannot but be aware of the suffering he is
inflicting and has, at every moment, the opportunity
to desist. That the appellant persisted in the
throttling of a six-year-old child until her eyes turned
CRL.A. NOS.429-430 OF 2020 Page 132 of 157
and she ceased to live is a circumstance that speaks
to the deliberateness and the callousness of the act.
169. The seventh aggravating circumstance is the
conduct of the appellant after the death, in seeking to
cause the disappearance of the evidence of his crime.
Upon the death of the child, the appellant proposed
that she be buried at once at Kushalgarh, where, on
the findings we have recorded, her death might have
passed into silence and escaped all scrutiny, and this
design was frustrated only by the insistence of the
mother that the body be taken to her own family. The
attempt to dispose of the body of the child so as to
conceal the manner of her death is a circumstance
that aggravates the offence and that is of a piece with
the purpose for which she was killed.
170. There is a further matter which, though it is not
a circumstance of the crime itself, bears upon the
character and the antecedent conduct of the
appellant, and which we record because it is
established upon the evidence and is relevant to the
sentencing inquiry. The appellant was a man with a
history of violence within the domestic sphere. It is
apparent from the record that the appellant had been
married on three previous occasions and that each of
his three earlier wives had left him on account of his
violent conduct. This was not merely the assertion of
the mother of the victim. It was borne out by the
evidence of the other witnesses connected with the
family. It emerged, through the very witnesses
examined in the case, that one of the daughters of the
appellant from a previous marriage had spoken of the
appellant beating her mother, and the pattern of
violence directed by the appellant against the women
and the child within his household was a recurring
feature of his life. The appellant, moreover, subjected
the mother of the victim herself to violence, beating
her when she attempted to intervene to protect her
child. This established history of domestic violence,
sustained across successive relationships, is relevant
to the assessment of the appellant, for it shows that
the conduct which culminated in the present crime
was not an isolated departure from an otherwise
blameless life but was continuous with a settled
disposition towards violence against those within his
power and his protection.
171. These, then, are the aggravating circumstances,
and we have stated them at their full weight, for they
are grave and they are many. Taken together, they
present a picture of a defenceless child, delivered into
the protection of the appellant, subjected by him over
months to a sustained course of sexual violation
within the home, left to suffer in a deteriorating
condition with medical aid deliberately withheld, and
finally throttled to death by his own hands in order to
silence her and to conceal his crime, her body then
sought to be buried in haste, the whole committed by
a man with an established history of violence against
the women and children within his household. It is
against this array of aggravating circumstances that
the mitigating circumstances must now be set, and it
is to those that we turn.
SECTION P - THE MITIGATING CIRCUMSTANCES
172. We turn now to the mitigating circumstances,
which we are bound to set out fully and to weigh
fairly, for the sentencing method that the law
prescribes requires that the circumstances of the
criminal be considered with the same care as the
circumstances of the crime, and that the mitigating
circumstances be construed liberally. We have
derived these circumstances principally from the
Mitigation Investigation Report and the
accompanying material now before us, and we state
them as they emerge from that material, neither
discounting them because the crime is grave nor
magnifying them beyond what the material supports.
173. The first body of mitigating circumstances
concerns the childhood and the early life of the
appellant. According to the Mitigation Investigation
Report, the appellant was born into circumstances of
CRL.A. NOS.429-430 OF 2020 Page 135 of 157
poverty and instability. His mother died when he was
about seven years of age, depriving him of his primary
caregiver at an early and formative stage. The report
states that he was thereafter subjected to neglect and
to ill-treatment, and that his childhood was marked
by deprivation. It states that he entered upon labour
at a very young age, that his schooling ended after
Class 5, and that he was married while still a boy of
about fifteen years. These circumstances describe a
childhood of hardship, of early loss, and of the
absence of the care and the education that might
have shaped the appellant differently. Childhood
deprivation and the early loss of a parent are
circumstances that this Court has recognised as
relevant to the sentencing inquiry, for they bear upon
the formation of the person who later offended.
174. The second body of mitigating circumstances
concerns the adversities of the appellant's adult life.
The Mitigation Investigation Report describes a life of
continued poverty, of economic instability and of
displacement, and it records a succession of
bereavements within the family, including the violent
death of a brother and, during the period of the
appellant's incarceration, the death of a son. These
are circumstances of genuine misfortune, and we do
not doubt the account of hardship that the report
presents.
CRL.A. NOS.429-430 OF 2020 Page 136 of 157
175. The third mitigating circumstance is that the
appellant has no criminal antecedents. It is not
shown that the appellant was previously convicted of
any offence, and the crime of which he stands
convicted, grave as it is, is not shown to have been
preceded by a record of prior criminality. The absence
of criminal antecedents is a circumstance that weighs
in favour of an offender in the assessment of
sentence, though its weight in the present case must
be assessed in the light of what we have already
recorded concerning the appellant's established
history of violence within the domestic sphere, which,
while it did not result in prior convictions, qualifies
the picture of a man of previously blameless conduct.
176. The fourth mitigating circumstance concerns
the conduct of the appellant during his years in
custody. The material before us indicates that the
conduct of the appellant in prison has been
satisfactory, that he has not been the subject of
disciplinary complaint, and that he has applied
himself during his incarceration to acquiring the
rudiments of literacy in Hindi and in the English
alphabet and to religious and spiritual observance.
Satisfactory conduct in custody, and efforts at selfimprovement
during incarceration, are
circumstances relevant to the assessment of the
probability of reformation, and we take them into
account. We shall have occasion, when we come to
CRL.A. NOS.429-430 OF 2020 Page 137 of 157
the weighing, to consider the extent to which conduct
in the controlled environment of a prison bears upon
the probability of reformation in the sense that the
sentencing inquiry requires, but we record at this
stage that the conduct of the appellant in custody has
been without blemish.
177. We record, in this connection, the result of the
psychological evaluation of the appellant conducted
by the medical board pursuant to the order of this
Court. The board, upon examining the appellant, was
of the unanimous opinion that he was conscious,
oriented to time, place and person, and that there was
no psychopathology on mental status examination.
The significance of this finding, for the purposes of
the sentencing inquiry, is twofold and must be stated
with precision. On the one hand, it establishes that
the appellant does not suffer, and did not suffer, from
any mental illness, intellectual disability or
psychiatric condition, so that the mitigating
consideration of a disordered or impaired mind,
which has weighed in favour of convicts in some of
the decided cases, is not available to the appellant,
whose crime was not the product of any such
condition. On the other hand, a finding that the
appellant is of sound mind and free of
psychopathology is not, and cannot be treated as, a
finding that he is beyond the possibility of reform, for
the absence of mental illness is not the presence of
CRL.A. NOS.429-430 OF 2020 Page 138 of 157
incorrigibility, and the report therefore neither
supplies mitigation to the appellant upon the ground
of mental disorder nor, of its own force, discharges
the burden that lies upon the State of establishing
that the appellant is beyond reformation. We weigh
the finding for what it is, and for no more.
178. The fifth mitigating circumstance concerns the
family of the appellant and his ties to them. The
material before us, including the affidavit of the
daughter of the appellant, indicates that the
appellant retains ties with the members of his family,
that his children have suffered in consequence of his
incarceration, and that the family looks to his
eventual return. The continued existence of family
ties, and the impact of the sentence upon the family
and in particular upon the children of the convict, are
matters that the sentencing inquiry may take into
account, though we observe that the impact of a
sentence upon the family of a convict, while it is a
consideration of humanity, is a circumstance that
attends every sentence of imprisonment and every
sentence of death, and its weight in the individual
case must be assessed accordingly.
179. The sixth and final matter to be weighed on the
side of the appellant concerns his age and the period
he has already spent in custody. The appellant is now
about fifty-six years of age, and he has been in
CRL.A. NOS.429-430 OF 2020 Page 139 of 157
custody for about eight years, of which about seven
have been spent under the sentence of death. The age
of the convict is a factor that Bachan Singh (Supra)
recognised as relevant to the sentence, and the period
already undergone, together with the period spent
under the shadow of the sentence of death, is a
circumstance that we take into account.
180. We have set out these mitigating circumstances
fully and we accept them as genuine. We do not
approach them in the grudging spirit that the law
forbids, and we record that the account of childhood
deprivation, of adult misfortune, of the absence of
prior convictions, of satisfactory conduct in custody,
and of continuing family ties is a body of mitigation
that is real and that must be weighed. At the same
time, and in fairness to the exercise we are required
to perform, we must observe that the existence of
mitigating circumstances is the beginning and not the
end of the sentencing inquiry, for the question is not
merely whether mitigating circumstances exist, but
what weight they carry when set against the
aggravating circumstances, and, in particular, what
bearing they have upon the two matters that lie at the
heart of the choice of sentence, namely the culpability
of the appellant for the crime he committed and the
probability of his reformation. It is to that weighing
that we now turn.
CRL.A. NOS.429-430 OF 2020 Page 140 of 157
SECTION Q- THE WEIGHING OF THE
CIRCUMSTANCES
181. We now undertake the weighing of the
aggravating circumstances against the mitigating
circumstances, which is the central task of the
sentencing exercise. We approach it upon the method
that the law prescribes, according to the mitigating
circumstances their full and liberal weight, examining
the circumstances of the criminal with the same
seriousness as the circumstances of the crime, and
bearing in mind throughout that the sentence of
death may be sustained only if the alternative of
imprisonment for life is unquestionably foreclosed.
182. It is necessary to begin by correcting the
approach upon which the High Court proceeded. The
High Court, in confirming the sentence of death,
assessed what it described as the crime test at one
hundred per cent and the criminal test at zero per
cent. With respect, a criminal test assessed at zero is
a proposition that can seldom be sustained, and it
cannot be sustained in the present case. To assess
the criminal test at zero is to assert that there is
nothing whatever to be said on the side of the
offender, that the balance sheet on his side is wholly
blank. That is almost never true of any human being,
and it is not true of the appellant, whose childhood
deprivation, absence of prior convictions, satisfactory
conduct in custody and other circumstances we have
CRL.A. NOS.429-430 OF 2020 Page 141 of 157
set out and accepted as genuine mitigation. A
sentencing court that reduces the criminal test to
zero has, in truth, declined to perform the weighing
at all, for it has treated the gravity of the crime as
though it discharged the court from the duty of
considering the criminal. The error is not a mere
infelicity of expression. It is the very error against
which the whole of the sentencing jurisprudence of
this Court has set its face, for the essential command
of Bachan Singh (Supra) is that the criminal be
weighed together with the crime, and a court that
assigns the criminal a weight of zero has disobeyed
that command. We therefore do not adopt the
approach of the High Court, and we proceed to weigh
the mitigation that genuinely exists against the
aggravation that we have found.
183. Upon the crime test, there can be no doubt. The
aggravating circumstances of the crime, which we set
out in detail, are established to the fullest degree. The
crime test is satisfied at the extreme end of the scale,
and the crime is one that must fill any conscience
with revulsion.
184. But the satisfaction of the crime test, however
emphatic, does not conclude the sentencing inquiry,
and it is at this point that the discipline of the law is
most easily lost and most important to observe. The
gravity of a crime, taken alone, has never been
sufficient under the law of this country to warrant the
CRL.A. NOS.429-430 OF 2020 Page 142 of 157
sentence of death, for if it were, the rarest of rare
doctrine would collapse into a simple measurement of
the enormity of the offence, and the mandate to weigh
the criminal would be rendered nugatory. The
sentence of death is reserved not for the gravest
crimes as a class, but for those cases within the
gravest class in which, after the circumstances of the
criminal have been weighed, the alternative of life
imprisonment is found to be unquestionably
foreclosed. We must therefore turn to the
circumstances of the criminal, and to the probability
of his reformation, and we must do so not as a
formality to be discharged on the way to a conclusion
already reached, but as the decisive stage of the
inquiry.
185. The mitigating circumstances in the present
case, which we have set out and accepted as genuine,
are neither slight nor few. It is a substantial body of
mitigation, and it is imperative that it be given not a
grudging but a generous weight.
186. It was urged on behalf of the State that the
mitigation report relied upon by the appellant is
robbed of its force and that the material on record
affirmatively negatives the probability of his
reformation. The submission was rested upon four
grounds. The first was that the mitigation bears no
explanatory relation to the crime, the appellant's
hardships not accounting for his sexual violation and
CRL.A. NOS.429-430 OF 2020 Page 143 of 157
killing of a child. The second was the antecedent
conduct of the appellant, and in particular the history
of violence towards the women within his household
across his successive marriages, said to show that the
present crime was not an aberration but the
culmination of a settled disposition. The third was the
conduct of the appellant in relation to the crime and
thereafter, namely his attempt to conceal the offence
and his continued denial of it and advancement of
false defences, said to betray an absence of any
remorse from which a hope of reformation might be
drawn. The fourth was the report of the medical
board, which found the appellant to be free of any
psychopathology, and which, it was submitted,
excludes the possibility that the crime was the
product of any mental condition and leaves it as the
expression of his own settled character.
187. We consider the first of these grounds first, for
it raises a question of principle. There is a measure of
truth in the observation that a mitigating
circumstance connected with the offence may weigh
more heavily than one disconnected from it. But we
must be cautious not to press that observation so far
as to defeat the very purpose for which the law
requires mitigation to be considered. The direction of
Bachan Singh (Supra) that the mitigating
circumstances of the criminal be weighed is not
confined to circumstances that explain or excuse the
CRL.A. NOS.429-430 OF 2020 Page 144 of 157
crime. It extends to the whole of what may be said, in
humanity and in justice, on behalf of the person who
is to be sentenced, including the circumstances of a
life shaped by deprivation and loss, for these bear
upon the culpability of the offender as a moral agent
and upon the question whether the community must
exact his life or may instead exact a lesser retribution.
To hold that childhood deprivation counts for nothing
unless it can be shown to have caused the crime
would be to narrow the mitigating inquiry to a search
for excuses, and to deny the generous consideration
that Bachan Singh (Supra) commands. We therefore
give to the appellant's history of deprivation and
misfortune a real and not a merely nominal weight,
and we do not accept that a want of a causal nexus
to the crime deprives it of its weight.
188. We come to the question upon which the recent
jurisprudence of this Court has laid the greatest
emphasis, and which is in our judgment is decisive of
the present case, namely the probability of the
reformation of the appellant, to which the remaining
three grounds of the State's submission are directed.
Here the state of the record is of the first importance.
The burden of establishing that the appellant is
beyond the possibility of reform, and is a continuing
threat to society such that his life must be taken, lay
upon the State, as Bachan Singh (Supra) holds. The
State led no evidence whatever directed to that
CRL.A. NOS.429-430 OF 2020 Page 145 of 157
question. It placed nothing before the courts below,
and nothing before us, to show that the appellant is
incapable of reformation. On the other side, the
material that is before us tells in favour of the
possibility of reform, for the conduct of the appellant
across eight years in custody has been satisfactory,
he has been guilty of no institutional misconduct, and
he has turned, so far as the confines of a prison
permit, to self-improvement and to religious
observance.
189. The three remaining grounds of the State's
submission do not, upon examination, discharge the
burden that lay upon it. As to the antecedent history
of domestic violence, we have found it established
that the three earlier wives of the appellant left him
and that he subjected the mother of the victim to
violence when she intervened to protect her child, and
this disposition is a circumstance that tells against
the appellant. But a disposition to violence,
established upon the record, is not the same as a
demonstration that the offender is beyond the reach
of reformation, which is a distinct finding requiring
its own foundation, and the State led no material to
carry the one to the other. As to the appellant's denial
of the crime and his false defences, we are conscious
of a limit upon the use that may be made of them. We
do not treat the appellant's denial of his guilt, or his
pursuit of his defences, as an aggravating
CRL.A. NOS.429-430 OF 2020 Page 146 of 157
circumstance or as a matter to be held against him,
for an accused is entitled to deny his guilt and to
defend himself, and the drawing of an adverse
inference from the mere assertion of innocence would
be impermissible. His denial furnishes no positive
indication of remorse, but the absence of a mitigating
indication is not the presence of an aggravating one,
and it does not establish incorrigibility. As to the
report of the medical board, its significance has
already been explained: it removes any mitigation
founded on a disordered mind, but it does not
discharge the State's burden of showing
incorrigibility.
190. We are conscious that conduct in the controlled
environment of a prison is not a complete measure of
reformation, and that it must be assessed with that
limitation in mind. But the question is not whether
the material proves reformation to a certainty. The
question, upon the settled law, is whether the
possibility of reformation can be excluded, for it is
only where that possibility is excluded that the
sentence of death becomes permissible. Upon a
record in which the State has led no evidence of
incorrigibility, in which the conduct of the convict has
been without blemish, and in which the psychological
evaluation discloses no condition from which
incorrigibility might be inferred, the possibility of
reformation cannot be said to be excluded. It remains
CRL.A. NOS.429-430 OF 2020 Page 147 of 157
open, and while it remains open the alternative of life
imprisonment is not foreclosed.
191. We have given the most thorough consideration
to the aggravating circumstance which we identified
as the gravest feature of this case, namely that the
murder of the victim was committed in order to
silence her and to extinguish the evidence of the rape,
a feature which we have designated as instrumental
silencing, and which we do not cease to regard as an
aggravating circumstance of the highest order. It
compounds the murder of the child with an assault
upon the administration of justice, and it lends the
crime an exceptional character. We have weighed it
fully. But an aggravating circumstance, however
grave, operates within the structure of the sentencing
inquiry and does not stand outside it. Even the
gravest aggravating feature must be weighed against
the mitigating circumstances and, in particular,
against the unexcluded possibility of reformation,
and it cannot by its mere presence foreclose the
alternative of life imprisonment where that possibility
remains open and where the State has led no
evidence to close it. The aggravating circumstance of
instrumental silencing establishes, beyond doubt,
that the crime belongs to the gravest class. It does
not, by itself, establish that the criminal is beyond
redemption, which is the further and distinct finding
CRL.A. NOS.429-430 OF 2020 Page 148 of 157
that the sentence of death requires and which, on this
record, cannot be made.
192. Drawing the weighing together, we find as
follows. The crime test is satisfied at the extreme, and
the crime is marked by the exceptional aggravating
feature of instrumental silencing. But the mitigating
circumstances are genuine and substantial and are
entitled to a generous weight, and, decisively, the
possibility of the reformation of the appellant has not
been excluded, the State having led no evidence of his
incorrigibility, the psychological evaluation disclosing
no condition from which incorrigibility might be
inferred, and the material as to his conduct in
custody telling the other way. In these circumstances,
and giving to the gravity of the crime its full and
terrible weight, we are unable to hold that this is a
case in which the alternative of imprisonment for life
is unquestionably foreclosed. Whether that
conclusion is confirmed when the present case is
measured against the decisions of this Court in
comparable cases, and when the intermediate
sentencing options are considered, is the subject of
the section that follows
SECTION R - THE COMPARABLE CASES, THE MIDDLE
PATH, AND THE ADEQUATE SENTENCE
193. A weighing of aggravating and mitigating
circumstances is not complete until it has been tested
CRL.A. NOS.429-430 OF 2020 Page 149 of 157
against the decisions of this Court in comparable
cases, so that like cases are treated alike, and until
the court has considered the sentencing options that
lie between the sentence of death and the ordinary
sentence of life imprisonment. We address each in
turn.
194. The appellant placed before us a substantial
body of decisions of this Court in which the sentence
of death, imposed for the rape and murder of a young
child, was commuted, and these decisions are of
direct relevance, for they concern the very class of
crime that is before us. Among them are Lochan
Shrivas v. State of Chhattisgarh50, in which the
death sentence for the rape and murder of a child was
commuted upon a consideration of the youth and the
family background of the offender and the absence of
material excluding reformation, and Irappa
Siddappa Murgannavar v. State of Karnataka51,
in which the death sentence for the rape and murder
of a girl child, whose body had been disposed of in a
manner designed to conceal the crime, was
commuted to imprisonment for thirty years without
remission upon a consideration of the absence of
criminal antecedents, the absence of premeditation
and the possibility of reformation. To these must be
50 (2022) 15 SCC 401
51 (2022) 2 SCC 801
CRL.A. NOS.429-430 OF 2020 Page 150 of 157
added the decision of this Court in Vasanta Sampat
Dupare v. Union of India52, in which this Court set
aside a sentence of death that had earlier been
confirmed, including upon review, in a case of the
rape and murder of a child of four years, upon the
ground that the sentencing had not been preceded by
the individualised mitigation inquiry that Manoj
(Supra) requires. Dupare (Supra) is a decision of the
highest relevance, for it demonstrates the insistence
of this Court, in the most recent phase of its
jurisprudence, that the sentence of death shall not
stand unless the mitigating circumstances of the
offender have been genuinely gathered and weighed,
and that the gravity of such a crime does not dispense
with that requirement.
195. These decisions establish a discernible and
principled current in the jurisprudence of this Court.
It is that this Court has increasingly declined to
impose or to sustain the sentence of death where the
offender is without criminal antecedents, where his
conduct in custody has been satisfactory, and where
the State has led no material to exclude the possibility
of his reformation, and has instead turned to the
severe but non-lethal alternative of a long sentence of
imprisonment without remission. The present case
shares each of the features that has driven that
52 2025 INSC 1043
CRL.A. NOS.429-430 OF 2020 Page 151 of 157
result. The appellant is without criminal antecedents.
His conduct in custody has been without blemish.
The State has led no evidence of his incorrigibility. We
are unable to identify a principled basis upon which
the appellant could be sent to the gallows while the
offenders in Lochan Shrivas (Supra) and Irappa
(Supra), and the offender whose sentence was
reopened in Dupare (Supra), were held entitled to the
consideration of the lesser sentence. The principle of
the equal treatment of like cases, which is itself a
component of the guarantee of equality before the
law, weighs heavily against a sentence of death in the
present case.
196. We are conscious that the present case is
marked by the aggravating circumstance of
instrumental silencing, which was not a found
feature of each of the cases relied upon, and we have
considered whether that feature so distinguishes the
present case as to place it beyond the reach of the
jurisprudence we have described. We have concluded
that it does not. The feature of instrumental silencing
renders the crime exceptionally grave, and we have
said so. But it does not bear upon the circumstances
of the criminal, and in particular it does not exclude
the possibility of the reformation of the appellant,
which is the consideration that has proved decisive in
the commutation cases. A crime may be exceptionally
CRL.A. NOS.429-430 OF 2020 Page 152 of 157
grave and its perpetrator may yet not be shown to be
beyond reform, and where that is so the law, as it has
recently been applied, does not exact his life. The
aggravating feature distinguishes the crime, but it
does not distinguish the criminal in the respect that
matters to the choice of sentence.
197. It is at this point that the intermediate
sentencing option assumes its decisive importance.
Since the decision of this Court in Union of India v.
V. Sriharan (Supra), the court has not been confined,
in a case of this nature, to the stark choice between
the sentence of death and a sentence of life
imprisonment carrying the ordinary prospect of
remission after fourteen years. There lies between
them the option of imprisonment for the whole of the
remainder of the convict's natural life, or for a fixed
term of years extending well beyond fourteen, without
the benefit of remission. The significance of this
intermediate option can hardly be overstated, for it
enables the court to answer the gravity of the crime
with a sentence of the utmost severity, one that may
confine the offender for the whole of his remaining
life, without the court being compelled to choose
between the taking of the offender's life and a
sentence that may see him released after fourteen
years. The existence of this option narrows very
greatly the class of cases in which the sentence of
CRL.A. NOS.429-430 OF 2020 Page 153 of 157
death can be said to be the only adequate sentence,
for the sentence of death is not the only adequate
sentence wherever a sentence of imprisonment for the
remainder of natural life would meet the ends of
justice.
198. We have asked ourselves whether, in the present
case, a sentence of imprisonment for the remainder
of the natural life of the appellant, without the benefit
of remission, would adequately answer the gravity of
the crime, including its exceptional aggravating
feature. After thorough consideration, we have
concluded that it would. Such a sentence would
confine the appellant, now a man of about fifty-six
years, for the whole of the remainder of his days,
without the prospect of release. It would exact from
him a retribution of the utmost severity,
proportionate to the gravity of what he did. It would
protect society from him for the whole of his life. And
it would do these things while preserving, as the
sentence of death by its irrevocable nature cannot,
the possibility of reform. Where a sentence of this
severity is available and would meet the ends of
justice, the sentence of death cannot be said to be the
only adequate sentence, and the alternative to death
is therefore not foreclosed.
CRL.A. NOS.429-430 OF 2020 Page 154 of 157
199. We are conscious of the gravity of the
aggravating circumstances, and in particular of the
instrumental silencing of a violated child, and we
have not reached our conclusion by understating
them. We have reached it because the law of this
country reserves the sentence of death for the case in
which, the circumstances of the criminal having been
weighed, the possibility of reformation excluded, and
the intermediate sentence found inadequate, no
punishment short of death would meet the ends of
justice, and because the present case, grave as it is,
does not satisfy that exacting standard. The State has
not excluded the possibility of the appellant's
reformation. The intermediate sentence of
imprisonment for the remainder of his natural life is
available and is adequate to the crime. In these
circumstances, to impose the sentence of death
would be to exact the life of a man whose
incorrigibility has not been shown, in a case in which
a severe and sufficient alternative lies to hand, and
that the law does not permit.
200. There remains the matter of the period the
appellant has already spent in custody and under the
sentence of death. Having concluded that the
sentence of death ought not to be sustained, we need
not rest anything upon that consideration, and we
record only that the eight years of the appellant's
CRL.A. NOS.429-430 OF 2020 Page 155 of 157
incarceration, seven of them under the shadow of the
sentence of death, form part of the circumstances
that uphold our conclusion that the ends of justice
will be met by the sentence we propose to substitute.
PART X – THE CONCLUSION
201. For the reasons we have recorded, we are of the
view that this is not a case in which the sentence of
death ought to be sustained. The crime is of the
utmost gravity, and it is marked by an exceptional
aggravating feature, but the mitigating circumstances
of the appellant are genuine and substantial, the
possibility of his reformation has not been excluded
by the State upon whom the burden lay, and the
intermediate sentence of imprisonment for the
remainder of his natural life, without remission, is
available and is adequate to answer the gravity of the
crime. In these circumstances the alternative of
imprisonment for life is not unquestionably
foreclosed, and the sentence of death cannot be
sustained.
202. At the same time, the gravity of the crime, and
in particular the sustained sexual violation of a child
by her guardian and her killing to conceal that
violation, is such that a sentence of imprisonment for
life carrying the ordinary prospect of remission after
CRL.A. NOS.429-430 OF 2020 Page 156 of 157
fourteen years would be wholly inadequate to the
ends of justice. This is pre-eminently a case for the
exercise of the intermediate sentencing power
recognised in Union of India v. V. Sriharan (Supra).
203. We accordingly commute the sentence of death
imposed upon the appellant for the offences under
Section 302 and Section 376AB of the IPC to a
sentence of imprisonment for the remainder of his
natural life, that is, imprisonment for life which shall
extend to the whole of the remainder of his natural
life and upon which no remission shall be granted.
We affirm the sentences of imprisonment and fine
imposed upon the appellant for the remaining
offences under Sections 376(2)(f), 376(2)(n) and 201
of the IPC and Sections 5 and 6 of the POCSO Act.
Having regard to Section 42 of the POCSO Act, the
appellant shall be liable to punishment under that
Act or under the corresponding provisions of the IPC,
whichever is the greater in degree, and all the
substantive sentences shall run concurrently.
204. We record that the sentence we have imposed is
a sentence of the utmost severity, second only to the
sentence of death, and that it will confine the
appellant within the walls of a prison for the whole of
the remainder of his life, without the prospect of
release by way of remission. It is a sentence
proportionate to the gravity of his crime, and it
reflects the abhorrence with which the law regards
what he did, while stopping short of the taking of his
life in a case in which the possibility of his
reformation has not been foreclosed.
205. The appeals are disposed of in the above terms.
……………………………………J.
[VIKRAM NATH]
……………………………………J.
[SANDEEP MEHTA]
……………………………………J.
[VIJAY BISHNOI]
NEW DELHI;
SEPTEMBER 24, 2026
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